Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-5272             March 19, 1910

THE UNITED STATES, plaintiff-appellee, vs.AH CHONG, defendant-appellant.

Gibb & Gale, for appellant. Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a

permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as

defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx             xxx             xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the intruder

if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or

misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal

intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence, and

imprudence, does not impose any criminal liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties the quo animo with which a thing was done is sometimes important,

not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done by me against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the

community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance

or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing — or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them — he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be the law will not punish him though they are in truth otherwise, and he was really no occassion for

the extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the "act punished by law" was committed "voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had

always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his

house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window — at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" — because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the

requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur. Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568 of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and while the act was done without malice or criminal intent it was, however, executed with real negligence, for the acts committed by the deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be sentenced to the penalty of one year and one month of prision correctional, to suffer the accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with the costs of both instances, thereby reversing the judgment appealed from.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-35748 December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants.

Teofilo Mendoza for appellants.Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First Instance of Bulacan convicting them upon the information of the crime of arson as follows: The former as principal by direct participation, sentenced to fourteen years, eight months, and one day of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as accomplice, sentenced to six years and one day of presidio mayor; and both are further sentenced to the accessories of the law, and to pay each of the persons whose houses were destroyed by the fire, jointly and severally, the amount set forth in the information, with costs.

Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza, and makes the following assignments of error with reference to Romana Silvestre, to wit:

1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the information.

2. Finally, the court erred in not acquitting said defendant from the information upon the ground of insufficient evidence, or at the least, of reasonable doubt.

The following facts were proved at the hearing beyond a reasonable doubt:

Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of Paombong, Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin, filed with the justice of the peace for that municipality, a sworn complaint for adultery, supported by affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said accused were arrested on a warrant issued by said justice of the peace. On the 20th of the month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary investigation of the case, the two defendants begged the municipal president of Paombong, Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the complaint, the two accused binding themselves to discontinue cohabitation, and promising not to live again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The municipal president transmitted the defendants' petition to the complaining husband, lending it his support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the adultery case commenced against the accused, and cancelled the bonds given by them, with the costs against the complainant.

The accused then left the barrio of Masocol and went to live in that of Santo Niño, in the same municipality of Paombong.

About November 20, 1930, the accused Romana Silvestre met her son by her former marriage, Nicolas de la Cruz, in the barrio of Santo Niño, and under pretext of asking him for some nipa leaves, followed him home to the village of Masocol, and remained there. The accused, Martin Atienza, who had continued to cohabit with said Romana Silvestre, followed her and lived in the home of Nicolas de la Cruz.

On the night of November 25, 1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together with the appellants herein after supper, Martin Atienza told said couple to take their furniture out of the house because he was going to set fire to it. Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that that was the only way he could be revenged upon the people of Masocol who, he said, had instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a pistol, no one dared say anything to him, not even Romana Silvestre, who was about a meter away from her codefendant. Alarmed at what Martin Atienza had said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms' length when they heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran back to it; but seeing that the fire had assumed considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home of his parents-in-law, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61 years of age, coming from their homes, to the house on fire, saw Martin Atienza going away from the house where the fire started, and Romana Silvestre leaving it.lawphil.net

As stated in the beginning, counsel appointed by this court to defend the accused-appellant de oficio, prays for the affirmance of the judgment appealed from with reference to defendant Martin Atienza. The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this petition of the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of arson as charged, as principal by direct participation.

With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are: That, being married, she lived adulterously with her codefendant Martin Atienza, a married man; that both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband; that in view of the petition of the accused,

who promised to discontinue their life together, and to leave the barrio of Masocol, and through the good offices of the municipal president of Paombong, the complaining husband asked for the dismissal of the complaint; that in pursuance of their promise, both of the accused went to lived in the barrio of Santo Niño, in the same municipality; that under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone to the barrio of Santo Niño, Romana Silvestre followed him to his house in the barrio of Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza followed her, and stayed with his coaccused in the same house; that on the night of November 25, 1930, at about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his intention of burning the house as the only means of taking his revenge on the Masocol resident, who had instigated Domingo Joaquin to file the complaint for adultery against them, which compelled them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without raising a protest, and did not give the alarm when the latter set fire to the house. Upon the strength of these facts, the court below found her guilty of arson as accomplice.

Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be one who does not take a direct part in the commission of the act, who does not force or induce other to commit it, nor cooperates in the commission of the act by another act without which it would not have been accomplished, yet cooperates in the execution of the act by previous or simultaneous actions.

Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their house as the only means of revenging himself on the barrio residents, her passive presence when Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and her failure to give the alarm when the house was already on fire?

The complicity which is penalized requires a certain degree of cooperation, whether moral, through advice,

encouragement, or agreement, or material, through external acts. In the case of the accused-appellant Romana Silvestre, there is no evidence of moral or material cooperation, and none of an agreement to commit the crime in question. Her mere presence and silence while they are simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that being a subsequent act it does not make her liable as an accomplice.

The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in article 550, paragraph 2, of the Penal Code, which reads as follows:

ART. 550. The penalty of cadena temporal shall be imposed upon:

x x x x x x x x x

2. Any person who shall set fire to any inhabited house or any building in which people are accustomed to meet together, without knowing whether or not such building or house was occupied at the time, or any freight train in motion, if the damage caused in such cases shall exceed six thousand two hundred and fifty pesetas.

While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely arson less serious than what the trial court sentenced him for, inasmuch as that house was the means of destroying the others, and he did not know whether these were occupied at the time or not. If the greater seriousness of setting fire to an inhabited house, when the incendiary does not know whether there are people in it at the time, depends upon the danger to which the inmates are exposed, not less serious is the arson committed by setting fire to inhabited houses by means of another inhabited house which the firebrand knew to be empty at the moment of committing the act, if he did not know whether there were people or not in the others, inasmuch as the same danger exists.

With the evidence produced at the trial, the accused-appellant Martin Atienza might have been convicted of the

crime of arson in the most serious degree provided for in article 549 of the Penal Code, if the information had alleged that at the time of setting fire to the house, the defendant knew that the other houses were occupied, taking into account that barrio residents are accustomed to retire at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night.

For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive presence at the scene of another's crime, mere silence and failure to give the alarm, without evidence of agreement or conspiracy, do not constitute the cooperation required by article 14 of the Penal Code for complicity in the commission of the crime witnessed passively, or with regard to which one has kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing whether there are people in them or not, sets fire to one known to be vacant at the time, which results in destroying the rest, commits the crime of arson, defined and penalized in article 550, paragraph 2, Penal Code.

By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference to the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant Romana Silvestre, who is hereby acquitted with one-half of the costs de oficio. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-32126 July 6, 1978

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.NEMESIO TALINGDAN, MAGELLAN TOBIAS, AUGUSTO BERRAS, PEDRO BIDES and TERESA DOMOGMA, accused-appellants.

PER CURIAM:

Appeal from the conviction for the crime of murder and the sentence of life imprisonment, with indemnity to the offended party, the heirs of the deceased Bernardo Bagabag, in the amount of P12,000, rendered by the Court of First Instance of Abra in its Criminal Case No. 686, of all the accused the namely, Nemesio Talingdan, Magellan Tobias, Augusta Berras, Pedro Bides and Teresa Domogma, the last being the supposed wife of the deceased, who, because no certificate nor any other proof of their marriage could be presented by the prosecution, could not be charged with parricide.

Prior to the violent death of Bernardo Bagabag on the night of June 24, 1967, he and appellant Teresa Domogma and their children, arrived together in their house at Sobosob, Salapadan, Abra, some 100 meters distant from the municipal building of the place. For sometime, however, their relationship had been strained and beset with troubles, for Teresa had deserted their family home a couple of times and each time Bernardo took time out to look for her. On two (2) different occasions, appellant Nemesis Talingdan had visited Teresa in their house while Bernardo was out at work, and during those visits Teresa had made Corazon, their then 12-year old daughter living with them, go down the house and leave them. Somehow, Bernardo had gotten wind that illicit relationship was going on between Talingdan and Teresa, and during a quarrel between him

and Teresa, he directly charged the latter that should she get pregnant, the child would not be his. About a month or so before Bernardo was killed, Teresa had again left their house and did not come back for a period of more than three (3) weeks, and Bernardo came to know later that she and Talingdan were seen together in the town of Tayum Abra during that time; then on Thursday night, just two (2) days before he was gunned down, Bernardo and Teresa had a violent quarrel; Bernardo slapped Teresa several times; the latter went down the house and sought the help of the police, and shortly thereafter, accused Talingdan came to the vicinity of Bernardo's house and called him to come down; but Bernardo ignored him, for accused Talingdan was a policeman at the time and was armed, so the latter left the place, but not without warning Bernardo that someday he would kin him. Between 10:00 and 11:00 o'clock the following Friday morning, Bernardo's daughter, Corazon, who was then in a creek to wash clothes saw her mother, Teresa, meeting with Talingdan and their co-appellants Magellan Tobias, Augusto Berras and Pedro Bides in a small hut owned by Bernardo, some 300 to 400 meters away from the latter's house; as she approached them, she heard one of them say "Could he elude a bullet"; and when accused Teresa Domogma noticed the presence of her daughter, she shoved her away saying "You tell your father that we will kill him".

Shortly after the sun had set on the following day, a Saturday, June 24, 1967, while the same 12-year old daughter of Bernardo was cooking food for supper in the kitchen of their house, she saw her mother go down the house through the stairs and go to the yard where she again met with the other appellants. As they were barely 3-4 meters from the place where the child was in the "batalan", she heard them conversing in subdued tones, although she could not discern what they were saying. She was able to recognize all of them through the light coming from the lamp in the kitchen through the open "batalan" and she knows them well for they are all residents of Sobosob and she used to see them almost everytime. She noted that the appellants had long guns at the time. Their meeting did not last long, after about two (2) minutes Teresa came up the house and proceeded to her room, while the other appellants went under an avocado tree nearby. As supper was then ready, the child caged her parents to eat, Bernardo who was in the room adjoining the kitchen did not heed his

daughter's call to supper but continued working on a plow, while Teresa also excused herself by saying she would first put her small baby to sleep. So Corazon ate supper alone, and as soon as she was through she again called her parents to eat. This time, she informed her father about the presence of persons downstairs, but Bernardo paid no heed to what she said. He proceeded to the kitchen and sat himself on the floor near the door. Corazon stayed nearby watching him. At that moment, he was suddenly fired upon from below the stairs of the "batalan". The four accused then climbed the stairs of the "batalan" carrying their long guns and seeing that Bernardo was still alive, Talingdan and Tobias fired at him again. Bides and Berras did not fire their guns at that precise time, but when Corazon tried to call for help Bides warned her, saying "You call for help and I will kill you", so she kept silent. The assailants then fled from the scene, going towards the east.

The first to come to the aid of the family was Corazon's male teacher who lived nearby. Teresa came out of her "silid" later; she pulled Corazon aside and questioned her, and when Corazon informed her that she recognized the killers of her father to be her co-appellants herein, she warned her not to reveal the matter to anyone, threatening to kill her if she ever did so. Still later on, other persons arrived and helped fix and dress the lifeless body of the victim, Bernardo, autopsy on which was performed in his own house by the Municipal Health Officer of the place on June 26, 1967, about 36 hours after death; burial took place on the same day. The victim's brother who came from Manila arrived one day after the burial followed by their mother who came from La Paz, Abra where she resides. Corazon, who had not earlier revealed the Identities of the killers of her father because she was afraid of her own mother, was somehow able to reveal the circumstances surrounding his killing to these immediate relatives of hers, and the sworn statement she thereafter executed on August 5, 1967 (Exh. B) finally led to the filing of the information for murder against the herein five (5) appellants.

On the other hand, according to the evidence for the defense: Teresa prior to her marriage with Bernardo, was a resident of the town of Manabo, Abra. She has a sister in Manila and two (2) brothers in America who love her dearly, that is why said brothers of hers had been continuously and regularly sending her monthly $100.00 in

checks, starting from the time she was still single up to the time of her husband's violent death on June 24, 1967, and thereafter. After their marriage, they moved to and resided in her husband's place in Sallapadan, Abra, bringing with them three (3) carabaos and two (2) horses, which Bernardo and she used in tilling a parcel of land in said place, separate and distinct from the parcel of land worked on by Bernardo's parents and their other children. She and Bernardo lived in their own house which was about 4-5 meters away from the house of her parents-in-law. She loved Bernardo dearly, they never quarreled, and her husband never maltreated her; although sometimes she had to talk to Bernardo when he quarrels with his own mother who wanted that Bernardo's earnings be given to her, (the mother) which Bernardo never did, and at those times, Bernardo would admonish Teresa "You leave me alone". Her in-laws also hated her because her mother-in-law could not get the earnings of Bernardo for the support of her other son, Juanito, in his schooling. On his part, Juanito also disliked her because she did not give him any of the carpentry tools which her brothers in America were sending over to her. She never left their conjugal home for any long period of time as charged by her mother-in-law, and if she ever did leave the house to go to other places they were only during those times when she had to go to Bangued to cash her dollar checks with the PNB branch there, and even on said trips, she was sometimes accompanied by Bernardo, or if she had to go alone and leaves Sallapadan in the morning, she rode in a weapons carrier along with merchants going to Bangued in the morning and always rode back with them to Sallapadan in the afternoon of the same day because the weapons carrier is owned by a resident of Sallapadan who waits for them. Teresa came to know Talingdan only when the latter became a policeman in Sallapadan, as whenever any of the carabaos and horses they brought from Manabo to Sallapadan got lost, she and Bernardo would go and report the matter to the Mayor who would then refer the matter to his policemen, one of whom is Talingdan, so that they may help locate the lost animals; Teresa knew Talingdan well because they are neighbors, the latter's home being only about 250-300 meters away from theirs. But illicit relationship had never existed between them.

Early in the evening of June 24, 1967, Teresa was in the kitchen of their house cooking their food for supper. Two

of the children, Corazon and Judit, were with her. Her husband, Bernardo, was then in the adjoining room making a plow. He had to make the plow at that time of the night because at daytime he worked as a carpenter in the convent. As soon as the food was ready, she and the children moved over to the adjoining room where Bernardo was to call him for supper, and he then proceeded to the kitchen to eat. Teresa and the two children were about to follow him to the kitchen when suddenly they heard more than five (5) or six (6) successive gun shots coming from near their "batalan". They were all so terrified that they immediately cried for help, albeit she did not know yet at that precise time that her husband was shot, as she and the children were still in the other room on their way to the kitchen, about three (3) meters away from Bernardo. But soon Teresa heard her husband crying in pain, and as soon as she reached him, she took Bernardo into her arms. She did not see the killers of her husband, as the night was then very dark and it was raining. Bernardo was in her arms when the first group of people who responded to their cry for help arrived. Among them were the chief of police, some members of the municipal council and appellant Tobias who even advised Teresa not to carry the lifeless body of Bernardo to avoid abortion as she was then six (6) months pregnant. The chief of police then conducted an investigation of the surroundings and he found some empty shells and foot prints on the ground some meters away from the "batalan". He also found some bullet holes on the southern walls of said "batalan" and on the nothern wallings of the kitchen. Later, Teresa requested some persons to relay the information about the death of her husband to her relatives in Manabo, Abra, and they in turn passed on the news to Bernardo's mother and her family in La Paz, Abra, where they were then residing, as they have left their house in Sallapadan about two (2) months previous after they lost the land they used to till there in a case with the natives called Tingians. Two (2) PC soldiers arrived in the afternoon of June 26, 1967, and after Bernardo's remains was autopsied and he was buried under their house, they conducted an investigation, but she did not give them any information relative to the Identity of the persons who shot her husband because she did not really see them. Her mother-in-law and a brother-in-law, Juanita Bagabag, arrived later, the former from the town of La Paz, Abra, and the latter from Manila, and after the usual nine (9) days mourning was over, they left Sallapadan, taking Teresa's

children under their custody. Teresa suspects that since her mother-in-law and her brother-in-law have axes to grind against her and they have her daughter, Corazon, under their custody, they had forced the said child to testify against her. She further declared that her late husband, Bernardo, had enemies during his lifetime, as he had quarrels with some people over the land they work on.

Furthermore, the defense presented evidence to the effect that: Talingdan was not in Sallapadan at the time of the killing of Bernardo on June 24, 1967; being a policeman of the place at the time, he was one of the two (2) policemen who escorted and acted as bodyguard of the Mayor, when the latter attended the cursillo in Bangued, all of them leaving Sallapadan on June 22 and returning thereto four (4) days later on June 26, hence, he could not have anything to do with the said killing. On the other hand, Tobias claimed to be in the house of one Mrs. Bayongan in Sallapadan on the date of said killing, but he was one of the persons who was called upon by the chief of police of the place to accompany him in answer to the call for help of the wife of the victim. The other two appellants Bides and Berras also alleged that they were in the same house of Mrs. Bayongan on that date; they are tillers of the land of said Mrs. Bayongan and had been staying in her house for a long time. They were sleeping when the chief of police came that evening and asked Tobias, who was then municipal secretary, to accompany him to the place of the shooting. They did not join them, but continued sleeping. They never left the said house of Mrs. Bayongan, which is about 250-300 meters away from the place of the killing, that evening of June 24, 1967.

After carefully weighing the foregoing conflicting evidence of the prosecution and defense, We have no doubt in Our mind that in that fatal evening of June 24, 1967, appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides, all armed with long firearms and acting inconspiracy with each other gunned down Bernardo as the latter was sitting by the supper table in their house at Sobosob, Sallapadan, Abra. They were actually seen committing the offense by the witness Corazon. She was the one who prepared the food and was watching her father nearby. They were all known to her, for they were all residents of Sobosob and she used to see them often before that night. Although only Talingdan and Tobias continued

firing at her father after they had climbed the stairs of the "batalan", it was Bides who threatened her that he would kill her if she called for help. Berras did not fire any shot then. But even before the four appellants went up the "batalan", they already fired shots from downstairs.

We also fully believe Corazon's testimony that two nights before, or on Thursday, June 22, 1967, the deceased Bernardo and appellant Teresa had a violent quarrel during which he slapped her several times. She went to seek the help of the police, and it was appellant Talingdan, a policeman of their town, who went to the vicinity of their house and challenged her father to come down, but the latter refused because the former was a policeman and was armed. And so, Talingdan left after shouting to her father that "If I will find you someday, I will kill you."

We likewise accept as truthful, Corazon's declaration regarding the amorous relationship between her mother and appellant Talingdan, as already related earlier above. So also her testimony that in the morning following the quarrel between her father and her mother and the threat made by Talingdan to the former, between 10:00 and 11:00 o'clock, she saw all the herein four male accused-appellants meeting with her mother in a small hut some 300 or 400 meters away from their house, near where she was then washing clothes, and that on said occasion she overheard one of them ask "Could (sic) he elude a bullet?", We have our doubts, however, as to whether or not her mother did say to her in shoving her away upon seeing her approach, "You tell your father we will kill him." If it were true that there was really such a message, it is to be wondered why she never relayed the same to her father, specially when she again saw the said appellants on the very night in question shortly before the shooting talking together in subdued tones with her mother and holding long arms. Moreover, it is quite unnatural that such a warning could have been done in such a manner.

Accordingly, it is Our conclusion from the evidence related above and which We have carefully reviewed that appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides are guilty of murder qualified by treachery, as charged, and that they committed the said offense in conspiracy with each other, with evident premeditation and in the dwelling of the offended party. In

other words, two aggravating circumstances attended the commission of the offense, namely, evident premeditation and that it was committed in the dwelling of the victim. No mitigating circumstance has been proven.

Appellants insist in their brief that the lone testimony of Corazon suffered from vital contradictions and inconsistencies and badges of falsehood because of patently unnatural circumstances alleged by her. We do not agree. As the Solicitor General has well pointed out, the fact that the witness varied on cross-examination the exact time of some of the occurrences she witnessed, such as, (1) whether it was before or after Bernardo had began eating when he was shot; (2) whether it was before or after seeing her mother's meeting with her co-accused in the morning of Friday, June 23, 1967, that she went to wash clothes; and (3) whether or not the accused were already upstairs or still downstairs when they first fired their guns, cannot alter the veracity of her having seen appellants in the act of mercilessly and cold-bloodedly shooting her father to death.

Contrary to the contention of appellants, there was nothing inherently unnatural in the circumstances related by her. We agree with the following rebuttal of the Solicitor General:

Appellants also attempt to buttress their attack against the credibility of Corazon Bagabag by pointing out five supposed unnatural declarations in her testimony; First, she said that her father, appeared unconcerned when she informed him of the presence of people downstairs. But as correctly observed by the prosecuting fiscal the witness does not know then "the mentality of her father" (p. 62, t.s.n., hearing of March 29, 1968). Second, Corazon also declared that the accused conversed that Saturday night preceding the day the crime charged was committed in a lighted place although there was a place which was unlighted in the same premises. But this only proves that the accused were too engrossed in their conversation, unmindful of whether the place where they were talking was lighted or not, and unmindful even of the risk of recognition. Third, witness declared that Pedro Bides and Augusto Berras did not fire their guns. Even if these accused did withhold their fire, however, since they were privies to the same criminal design, would this alter their

culpability? Should the witness Corazon Bagabag be discredited for merely stating an observation on her part which is not inherently unnatural? Fourth, Corazon also declared that only three bullets from the guns of the four male accused found their mark on the body of her father. But would this not merely prove that not all the accused were good shots? And fifth, the witness declared that her father was still able to talk after he was shot yet Dr. Jose Dalisan declared that his death was instantaneous It is respectfully submitted, however, that the doctor's opinion could yield to the positive testimony of Corazon Bagabag in this regard without in the least affecting the findings of said doctor as regards the cause of the death of the deceased. As thus viewed, there are no evident badges of falsehood in the whole breadth and length of Corazon Bagabag's testimony. (Pp. 9-10, People's Brief.)

Why and how Corazon could have concocted her version of the killing of her father, if it were not basically true, is hardly conceivable, considering she was hardly thirteen (13) years old when she testified, an age when according to Moore, a child , is, as a rule, but little influenced by the suggestion of others" because "he has already got some principles, lying is distasteful to him, because he thinks it is mean, he is no stranger to the sentiment of self- respect, and he never loses an opportunity of being right in what he affirms." (II Moore on Facts, pp. 1055-1056.) No cogent explanation has been offered why she would attribute the assault on her father to three other men, aside from Talingdan whom she knew had relations with her mother, were she merely making-up her account of how he was shot, no motive for her to do so having been shown.

Demolishing the theory of the accused that such testimony was taught to her by her uncle, His Honor pointed out that said "testimony, both direct and cross, would show that she was constant, firm and steady in her answers to questions directed to her." We have Ourselves read said testimony and We are convinced of the sincerity and truthfulness of the witness. We cannot, therefore, share appellants' apprehension in their Seventh Assignment of Error that the grave imputation of a mother's infidelity and her suggested participation in the killing of her husband, would if consistently impressed in the mind of their child, constitute a vicious poison enough to make the child, right or wrong, a willing instrument in any scheme to get even with her

wicked mother. We feel Corazon was too young to he affected by the infidelity of her mother in the manner the defense suggests. We are convinced from a reading of her whole testimony that it could not have been a fabrication. On the whole, it is too consistent for a child of thirteen years to be able to substantially maintain throughout her stay on the witness stand without any fatal flaw, in the face of severe and long cross-interrogations, if she had not actually witnessed the event she had described. We reject the possibility of her having been "brainwashed or coached" to testify as she did.

The second to the sixth assignments of error in the appeal brief do not merit serious consideration. Anent these alleged errors, suffice it to say that the following refutations of the Solicitor General are well taken:

Appellants also decry that the trial court allegedly failed to consider the testimony of Dr. Dalisan that the distance between the assailants and the deceased could have been 4 to 5 meters when the shots were fired. But the appellants overlook the testimony of Corazon Bagabag that when the first shot was fired, the gunman was about 3-½ meters from her father (p. 60, t.s.n., hearing of March 29, 1968), which disproves the theory of the defense that the killers fired from a stonepile under an avocado tree some 4 to 5 meters away from the deceased's house. Appellants also insist that the Court a quo ignored the testimonies of defense witness Cpl. Bonifacio Hall and Chief of Police Rafael Berras on their having found bullet marks on the southern walling of the house of the deceased, as well as empty cal. 30 carbine shells under the aforementioned avocado tree. The trial court, however, made the following apt observations on the testimony of defense witness Cpl. Bonifacio Hall:

This witness stated that we went to the house of the deceased to investigate the crime after the deceased had already been buried; that he investigated the widow as well as the surroundings of the house where the deceased was shot. He found empty shells of carbine under the avocado tree. He stated that the 'batalan' of the house of the deceased has a siding of about 1-½ meters high and that he saw bullet holes on the top portion of the wall directly pointing to the open door of the 'batalan' of the house of the deceased. When the court asked the witness what could have been the position of the assailant in shooting the deceased, he stated

that the assailant might have been standing. The assailant could not have made a bullet hole on the top portion of the sidings of the 'batalan' because the 'batalan' is only 1-½ meters high, and further, when asked as to the level of the ground in relation to the top sidings of the 'batalan,' he answered that it is in the same level with the ground. If this is true, it is impossible for the assailant to make a bullet hole at the top portion sidings of the 'batalan,' hence, the testimony of this witness who is a PC corporal is of no consequence and without merit. The court is puzzled to find a PC corporal testifying for the defense in this case, which case was filed by another PC sergeant belonging to the same unit and assigned in the same province of Abra (pp. 324- 325, rec.).

As regards the empty shells also found in the vicinity of the shooting, suffice it to state that no testimony has been presented, expert or otherwise, linking said shells to the bullets that were fired during the shooting incident. Surmises in this respect surely would not overcome the positive testimony of Corazon Bagabag that the accused shot her father as they came up the 'batalan' of their house. (Pp. 11-12, People's Brief.)

At the trial, the four male appellants tried to prove that they were not at the scene of the crime when it happened. This defense of alibi was duly considered by the trial court, but it was properly brushed aside as untenable. In their brief, no mention thereof is made, which goes to show that in the mind of the defense itself,. it cannot be successfully maintained and they do not, therefore, insist on it. Nonetheless, it would do well for this Court to specifically affirm the apt pertinent ratiocination of His Honor in reference thereto thus:

This defense, therefore, is alibi which, in the opinion of the court, can not stand firmly in the face of a positive and unwavering testimony of the prosecution witness who pointed out to the accused as the authors of the crime. This is so because, first, according to the three accused — Bides, Tobias and Berras — they were sleeping at 8:00 o'clock that night in the house of Mrs. Bayongan which is only 250 meters away from the scene of the crime. Granting, for the sake of argument, but without admitting, that they were already sleeping at 8:00 o'clock in the house of Mrs. Bayongan, Corazon Bagabag clearly stated that her father

was gunned down at sunset which is approximately between 6:00 and 6:30 in the evening, hence, the accused Tobias, Berras and Bides could have committed the crime and went home to sleep in the house of Mrs. Bayongan after the commission of the crime. According to Pedro Bides, the house of Mrs. Bayongan is only 250 meters away from the house of the victim. Second, the three accused have failed miserably to present the testimony of Mrs. Bayongan, the owner of the house where they slept that night to corroborate or bolster their defense of alibi. (Pp. 27A-28A, Annex of Appellants' Brief.)

xxx xxx xxx

Nemesio Talingdan, alias Oming, the last of the accused, also in his defense of alibi, stated that on June 22, 1967, he accompanied Mayor Gregorio Banawa of Sallapadan to Bangued, together with policeman Cresencio Martinez for the purpose of attending a cursillo in Bangued They started in Sallapadan in the early morning of June 22, 1967 and arrived in Bangued the same day. According to him, he went to accompany the mayor to the cursillo house near the Bangued Cathedral and after conducting the mayor to the cursillo house, he went to board in the house of the cousin of Mayor Banawa near the Filoil Station at Bangued, Abra. From that time, he never saw the mayor until after they went home to Sallapadan on June 26th.

This kind of alibi could not gain much weight because he could have returned anytime on the evening of June 22 or anytime before the commission of the offense to Sallapadan and commit the crime on the 24th at sunset, then returned to Bangued, Abra to fetch the mayor and bring him back to Sallapadan on the 26th.

The irony of this defense of alibi is that the mayor who was alleged to have been accompanied by witness-accused is still living and very much alive. As a matter of fact, Mayor Gregorio Banawa is still the mayor of Sallapadan, Abra, and also policeman Cresencio Martinez, another policeman who accompanied the mayor to Bangued, is also still living and still a policeman of Sallapadan. Why were not the mayor and the policeman presented to corroborate or deny the testimony of Nemesio Talingdan?

Conrado B. Venus, Municipal Judge of Penarrubia Abra, and a member of the Cursillo Movement, was presented as rebuttal witness for the prosecution. On the witness stand, he stated that he belongs to Cursillo No. 3 of the Parish of Bangued, Abra, and said cursillo was held on October 20 to 23, 1966, at the St. Joseph Seminary in Galicia, Pidigan Abra, and not on June 23 to 26, 1967. As a matter of fact, Mayor Banawa of Sallapadan also attended the cursillo held on October 20 to 23, 1966, as could be seen in his 'Guide Book' where the signature of Gregorio Banawa appears because they both attended Cursillo No. 3 of the Parish of Bangued.

(To) this testimony of the rebuttal witness belies partly, if not in full, the testimony of accused Nemesio Talingdan. (Pp. 29A-30A, Annex of Appellants' Brief.)

Coming now to the particular case of appellant Teresa Domogma, as to whom the Solicitor General has submitted a recommendation of acquittal, We find that she is not as wholly innocent in law as she appears to the Counsel of the People. It is contended that there is no evidence proving that she actually joined in the conspiracy to kill her husband because there is no showing of 'actual cooperation" on her part with her co-appellants in their culpable acts that led to his death. If at all, what is apparent, it is claimed, is "mere cognizance, acquiescence or approval" thereof on her part, which it is argued is less than what is required for her conviction as a conspirator per People vs. Mahlon, 99 Phil. 1068. We do not see it exactly that way.

True it is that the proof of her direct participation in the conspiracy is not beyond reasonable doubt, for which reason, sue cannot have the same liability as her co-appellants. Indeed, she had no hand at all in the actual shooting of her husband. Neither is it clear that she helped directly in the planning and preparation thereof, albeit We are convinced that she knew it was going to be done and did not object. (U.S. vs. Romulo, 15 Phil. 408, 411-414.) It is not definitely shown that she masterminded it either by herself alone or together with her co-appellant Talingdan. At best, such conclusion could be plain surmise, suspicion and conjecture, not really includible. After all, she had been having her own unworthy ways with him for quite a long time, seemingly without any need of his complete

elimination. Why go to so much trouble for something she was already enjoying, and not even very surreptitiously? In fact, the only remark Bernardo had occasion to make to Teresa one time was "If you become pregnant, the one in your womb is not my child." The worst he did to her for all her faults was just to slap her.

But this is not saying that she is entirely free from criminal liability. There is in the record morally convincing proof that she is at the very least an accessory to the offense committed by her co-accused. She was inside the room when her husband was shot. As she came out after the shooting, she inquired from Corazon if she was able to recognize the assailants of her father. When Corazon Identified appellants Talingdan, Tobias, Berras and Bides as the culprits, Teresa did not only enjoin her daughter not to reveal what she knew to anyone, she went to the extent of warning her, "Don't tell it to anyone. I will kill you if you tell this to somebody." Later, when the peace officers who repaired to their house to investigate what happened, instead of helping them with the information given to her by Corazon, she claimed she had no suspects in mind. In other words, whereas, before the actual shooting of her husband, she was more or less passive in her attitude regarding her co-appellants' conspiracy, known to her, to do away with him, after Bernardo was killed, she became active in her cooperation with them. These subsequent acts of her constitute "concealing or assisting in the escape of the principal in the crime" which makes her liable as an accessory after the fact under paragraph 3 of Article 19 of the Revised Penal Code.

As already indicated earlier, the offense committed by appellants was murder qualified by treachery. It being obvious that appellants deliberately chose nighttime to suddenly and without warning assault their victim, taking advantage of their number and arms, it is manifest that they employed treachery to insure success in attaining their malevolent objective. In addition, it is indisputable that appellants acted with evident premeditation. Talingdan made the threat to kill Bernardo Thursday night, then he met with his co-accused to work out their conspiracy Friday and again on Saturday evening just before the actual shooting. In other words, they had motive Talingdan's taking up the cudgels for his paramour, Teresa and enough time to meditate, and desist, if they were not resolved to

proceed with their objective. Finally, they committed the offense in the dwelling of the offended party.

In these premises, the crime committed by the male appellants being murder, qualified by treachery, and attended by the generic aggravating circumstances of evident premeditation and that the offense was committed in the dwelling of the offended party, the Court has no alternative under the law but to impose upon them the capital penalty. However, as to appellant Teresa, she is hereby found guilty only as an accessory to the same murder.

WHEREFORE, with the above finding of guilt beyond reasonable doubt of the appellants Nemesio Talingdan, Magellan Tobias, Augusto Berras and Pedro Bides of the crime of murder with two aggravating circumstances, without any mitigating circumstance to offset them, they are each hereby sentenced to DEATH to be executed in accordance with law. Guilty beyond reasonable doubt as accessory to the same murder, appellant Teresa Domogma is hereby sentenced to suffer the indeterminate penalty of five (5) years of prision correccional as minimum to eight (8) years of prision mayor as maximum, with the accessory penalties of the law. In all other respects, the judgment of the trial court is affirmed, with costs against appellants.

Barredo, Muñoz Palma, Aquino, Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.

Antonio, Fernando, JJ., took no part.

Separate Opinions

MAKASIAR, J., dissenting:

I dissent insofar as the liability of the accused Teresa Domogma who should be convicted, not merely as an accessory, but of parricide as principal and meted the death

penalty, is concerned. A marriage certificate is not indispensable to establish the fact of marriage; because the presumption that the deceased and the accused Teresa were married subsists by reason of the fact that they had been living together for about thirteen (13) years as evidenced by the birth of the child-witness Corazon, who was 12 years old at the time her father was killed on June 24, 1967 by the accused-appellants, and who was 13 years of age when she testified. They have other children aside from Corazon.

That appellant Teresa is a co-conspirator, not merely an accessory after the fact has been clearly demonstrated by the testimony of her own daughter, Corazon, who declared categorically that she plotted with her co-appellants the assassination of her own husband whom she betrayed time and time again by her repeated illicit relations with her co-accused Nemesio Talingdan, a town policeman and their neighbor. The record is abundant with evidence that Teresa, without a feeling for shame and unnaturally lacking any concern for her minor children of tender age, deserted several times their family home to live with and continue with her immoral relations with appellant Talingdan with whom at one time she cohabited for more than three (3) weeks. Her patient husband had to look for her and to beg her to return each time she left the family abode for the embrace of her lover.

We should believe Corazon's statement that between 10 and 11 o'clock Friday morning, she saw her mother, appellant Teresa, meeting with her other co-appellants in a small hut owned by her father some 300 to 400 meters away from the latter's house near the creek where she was then washing clothes; that she heard one of the conspirators say "Could he elude a bullet?"; that when her mother noticed her presence, her mother shoved her away saying, "You tell your father that we will kill him"; that in the evening of the following day, Saturday, June 24, 1967, while she was cooking supper in their house, she saw her mother go down the stairs and meet the other appellants in the yard about 3 to 4 meters from where she was in the "batalan"; that she heard them conversing in subdued tones; that she was able to recognize all of them by the light coming from the kitchen lamp through the open "batalan"; that she knows all of them very well as they are all residents of their barrio and she used to see them almost everyday; that she noted that appellants were armed with long guns; that their

meeting did not last long; that after about 2 minutes her mother, appellant Teresa, came up the house and proceed to her room while the other appellants hid under an avocado tree nearby; that when supper was ready she called her parents to eat; that her father did not heed her call but continued working on a plow while her mother excused herself by saying she would first put her small baby to sleep; that she (Corazon) ate alone after which she again called her parents to eat; that about this time she informed her father about the presence of persons downstairs but her father paid no heed to what she said; that her father proceeded to the kitchen and sat on the floor near the door while Corazon stayed nearby watching him; that at the that moment her father was shot from below the stairs of the "batalan"; that the four accused then went up the stairs of the "batalan" with their long guns and, upon seeing that her father was still alive, appellants Talingdan and Tobias fired at him again; that when she (Corazon) tried to call for help, appellant Bides warned her saying "You call for help and I will kill you"; and that thereafter, the assailants fled towards the east.

The foregoing testimony of 13-year old Corazon should be accorded belief in the same way that credence was given to her statement that, upon her mother's inquiry immediately after the shooting as to whether she recognized the assailants of her father, she (Corazon) readily told her mother that she Identified appellants Talingdan, Tobias, Berras and Bides as the culprits; for which reason her mother warned her "Don't tell it to anyone. I will kill you if you tell this to somebody."

On Thursday or two days before Bernardo was shot, he and Teresa had a quarrel during which Bernardo slapped Teresa several times by reason of which Teresa left the house and sought the help of the police. Shortly thereafter appellant Talingdan came and called Bernardo to come down. When Bernardo ignored him because Talingdan was a policeman and was then armed, appellant Talingdan left after warning Bernardo that someday he would kill him.

Can there be a clearer demonstration of the active cooperation of Teresa in the conspiracy against the life of her husband? The majority opinion admits that Teresa was a paramour of appellant Talingdan; hence, she wanted

freedom from her husband, the victim, so that she could enjoy the company of her lover, appellant Talingdan.

From the evidence on record, appellant Teresa had no moral compunction in deserting her family and her children for the company of her lover. As heretofore stated, she did this several times and continued to do so until the violent death of her husband even as she was carrying a six-month old baby in her womb, the paternity of which her husband denied.

CASTRO, CJ., concurring:

Concurs, with the observations, however, that the evidence points to the appellant Teresa Domogma as a co-principal and that she should therefore also be held guilty of murder and sentenced to death.

TEEHANKEE, J., concurring:

Concurs, but join in the partial dissent of Mr. Justice Makasiar insofar as the penal liability of the accused Teresa Domogma is concerned.

Separate Opinions

MAKASIAR, J., dissenting:

I dissent insofar as the liability of the accused Teresa Domogma who should be convicted, not merely as an accessory, but of parricide as principal and meted the death penalty, is concerned. A marriage certificate is not indispensable to establish the fact of marriage; because the presumption that the deceased and the accused Teresa were married subsists by reason of the fact that they had been living together for about thirteen (13) years as evidenced by the birth of the child-witness Corazon, who was 12 years old at the time her father was killed on June 24, 1967 by the accused-appellants, and who was 13 years of age when she testified. They have other children aside from Corazon.

That appellant Teresa is a co-conspirator, not merely an accessory after the fact has been clearly demonstrated by the testimony of her own daughter, Corazon, who declared categorically that she plotted with her co-appellants the assassination of her own husband whom she betrayed time

and time again by her repeated illicit relations with her co-accused Nemesio Talingdan, a town policeman and their neighbor. The record is abundant with evidence that Teresa, without a feeling for shame and unnaturally lacking any concern for her minor children of tender age, deserted several times their family home to live with and continue with her immoral relations with appellant Talingdan with whom at one time she cohabited for more than three (3) weeks. Her patient husband had to look for her and to beg her to return each time she left the family abode for the embrace of her lover.

We should believe Corazon's statement that between 10 and 11 o'clock Friday morning, she saw her mother, appellant Teresa, meeting with her other co-appellants in a small hut owned by her father some 300 to 400 meters away from the latter's house near the creek where she was then washing clothes; that she heard one of the conspirators say "Could he elude a bullet?"; that when her mother noticed her presence, her mother shoved her away saying, "You tell your father that we will kill him"; that in the evening of the following day, Saturday, June 24, 1967, while she was cooking supper in their house, she saw her mother go down the stairs and meet the other appellants in the yard about 3 to 4 meters from where she was in the "batalan"; that she heard them conversing in subdued tones; that she was able to recognize all of them by the light coming from the kitchen lamp through the open "batalan"; that she knows all of them very well as they are all residents of their barrio and she used to see them almost everyday; that she noted that appellants were armed with long guns; that their meeting did not last long; that after about 2 minutes her mother, appellant Teresa, came up the house and proceed to her room while the other appellants hid under an avocado tree nearby; that when supper was ready she called her parents to eat; that her father did not heed her call but continued working on a plow while her mother excused herself by saying she would first put her small baby to sleep; that she (Corazon) ate alone after which she again called her parents to eat; that about this time she informed her father about the presence of persons downstairs but her father paid no heed to what she said; that her father proceeded to the kitchen and sat on the floor near the door while Corazon stayed nearby watching him; that at the that moment her father was shot from below the stairs of the "batalan"; that the four accused then went up the stairs of

the "batalan" with their long guns and, upon seeing that her father was still alive, appellants Talingdan and Tobias fired at him again; that when she (Corazon) tried to call for help, appellant Bides warned her saying "You call for help and I will kill you"; and that thereafter, the assailants fled towards the east.

The foregoing testimony of 13-year old Corazon should be accorded belief in the same way that credence was given to her statement that, upon her mother's inquiry immediately after the shooting as to whether she recognized the assailants of her father, she (Corazon) readily told her mother that she Identified appellants Talingdan, Tobias, Berras and Bides as the culprits; for which reason her mother warned her "Don't tell it to anyone. I will kill you if you tell this to somebody."

On Thursday or two days before Bernardo was shot, he and Teresa had a quarrel during which Bernardo slapped Teresa several times by reason of which Teresa left the house and sought the help of the police. Shortly thereafter appellant Talingdan came and called Bernardo to come down. When Bernardo ignored him because Talingdan was a policeman and was then armed, appellant Talingdan left after warning Bernardo that someday he would kill him.

Can there be a clearer demonstration of the active cooperation of Teresa in the conspiracy against the life of her husband? The majority opinion admits that Teresa was a paramour of appellant Talingdan; hence, she wanted freedom from her husband, the victim, so that she could enjoy the company of her lover, appellant Talingdan.

From the evidence on record, appellant Teresa had no moral compunction in deserting her family and her children for the company of her lover. As heretofore stated, she did this several times and continued to do so until the violent death of her husband even as she was carrying a six-month old baby in her womb, the paternity of which her husband denied.

CASTRO, CJ., concurring:

Concurs, with the observations, however, that the evidence points to the appellant Teresa Domogma as a co-principal

and that she should therefore also be held guilty of murder and sentenced to death.

TEEHANKEE, J., concurring:

Concurs, but join in the partial dissent of Mr. Justice Makasiar insofar as the penal liability of the accused Teresa Domogma is concerned.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 97471 February 17, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ISABELO PUNO y GUEVARRA, alias "Beloy," and ENRIQUE AMURAO y PUNO, alias "Enry," accused-appellants.

The Solicitor General for plaintiff-appellee.

Edward C. Castañeda for accused-appellants.

REGALADO, J.:

The primal issue for resolution in this case is whether accused-appellants committed the felony of kidnapping for ransom under Article 267 of the Revised Penal Code, as charged in the information; or a violation of Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974), as contended by the Solicitor General and found by the trial court; or the offense of simple robbery punished by Paragraph 5, Article 294 of the Revised Penal Code, as claimed by the defense.

In an information dated and filed on May 31, 1989 in the Regional Trial Court of Quezon City, Branch 103, as

Criminal Case No. Q-57404 thereof, appellants were charged with kidnapping for ransom allegedly committed in the following manner:

That on or about the 13th day of January, 1988 in Quezon City, Philippines and within the jurisdiction of this Honorable Court, the said accused, being then private individuals, conspiring together, confederating with and mutually helping each other, did, then and there, wilfully, unlawfully and feloniously kidnap and carry away one MARIA DEL SOCORRO SARMIENTO y MUTUC * for the purpose of extorting ransom, to the damage and prejudice of the said offended party in such amount as may be awarded to her under the provisions of the Civil Code. 1

On a plea of not guilty when arraigned, 2 appellants went to trial which ultimately resulted in a judgment promulgated on September 26, 1990 finding them guilty of robbery with extortion committed on a highway, punishable under Presidential Decree No. 532, with this disposition in the fallo thereof:

ACCORDINGLY, judgment is hereby rendered finding the accused ISABELO PUNO and ENRIQUE AMURAO GUILTY as principals of robbery with extortion committed on a highway and, in accordance with P.D. 532, they are both sentenced to a jail term of reclusion perpetua.

The two accused are likewise ordered to pay jointly and severally the offended private victim Ma. Socorro M. Sarmiento the sum of P7,000.00 as actual damages and P3,000.00 as temperate damages. 3

Before us now in this appeal, appellants contend that the court a quo erred (1) in convicting them under Presidential Decree No. 532 since they were not expressly charged with a crime therein; (2) in applying Sections 4 and 5, Rule 120 of the Rules of Court since the charge under said presidential decree is not the offense proved and cannot rightly be used as the offense proved which is necessarily included in the offense charged. 4

For the material antecedents of this case, we quote with approval the following counter-statement of facts in the People's brief 5 which adopted the established findings of the court a quo, documenting the same with page references

to the transcripts of the proceedings, and which we note are without any substantial divergence in the version proffered by the defense.

This is a prosecution for kidnapping for ransom allegedly done on January 13, 1988 by the two accused (tsn, Jan. 8, 1990, p. 7).

Mrs. Maria Socorro Mutuc-Sarmiento owns a bakeshop in Araneta Avenue, Quezon City called Nika Cakes and Pastries. She has a driver of her own just as her husband does (Ibid., pp. 4-6).

At around 5:00 in the afternoon of January 13, 1988, the accused Isabelo Puno, who is the personal driver of Mrs. Sarmiento's husband (who was then away in Davao purportedly on account of local election there) arrived at the bakeshop. He told Mrs. Socorro that her own driver Fred had to go to Pampanga on an emergency (something bad befell a child), so Isabelo will temporary (sic) take his place (Id., pp. 8-9).

Mrs. Socorro's time to go home to Valle Verde in Pasig came and so she got into the Mercedes Benz of her husband with Isabelo on (sic) the wheel. After the car turned right in (sic) a corner of Araneta Avenue, it stopped. A young man, accused Enrique Amurao, boarded the car beside the driver (Id., pp. 9-10).

Once inside, Enrique clambered on top of the back side of the front seat and went onto where Ma. Socorro was seated at the rear. He poke (sic) a gun at her (Id., p. 10).

Isabelo, who earlier told her that Enrique is his nephew announced, "ma'm, you know, I want to get money from you." She said she has money inside her bag and they may get it just so they will let her go. The bag contained P7,000.00 and was taken (Id., pp. 11-14).

Further on, the two told her they wanted P100,000.00 more. Ma. Socorro agreed to give them that but would they drop her at her gas station in Kamagong St., Makati where the money is? The car went about the Sta. Mesa area. Meanwhile, Ma. Socorro clutched her Rosary and prayed. Enrique's gun was menacingly storing (sic) at her soft bread

(sic) brown, perfumed neck. He said he is an NPA and threatened her (Id., p.15).

The car sped off north towards the North superhighway. There Isabelo, Beloy as he is called, asked Ma. Socorro to issue a check for P100,000.00. Ma. Socorro complied. She drafted 3 checks in denominations of two for P30 thousand and one for P40 thousand. Enrique ordered her to swallow a pill but she refused (Id., pp. 17-23).

Beloy turned the car around towards Metro Manila. Later, he changed his mind and turned the car again towards Pampanga. Ma. Socorro, according to her, jumped out of the car then, crossed to the other side of the superhighway and, after some vehicles ignored her, she was finally able to flag down a fish vendors van. Her dress had blood because, according to Ma. Socorro, she fell down on the ground and was injured when she jumped out of the car. Her dress was torn too (Id., pp. 23-26).

On reaching Balintawak, Ma. Socorro reported the matter to CAPCOM (Id., p. 27).

Both accused were, day after, arrested. Enrique was arrested trying to encash Ma. Socorro's P40,000.00 check at PCI Bank, Makati. (tsn, Oct. 18, 1989, pp. 10-13) 6

As observed by the court below, the defense does not dispute said narrative of complainant, except that, according to appellant Puno, he stopped the car at North Diversion and freely allowed complainant to step out of the car. He even slowed the car down as he drove away, until he saw that his employer had gotten a ride, and he claimed that she fell down when she stubbed her toe while running across the highway. 7

Appellants further testified that they brought the Mercedez Benz car to Dolores, San Fernando, Pampanga and parked it near a barangay or police outpost. They thereafter ate at a restaurant and divided their loot. 8 Much later, when he took the stand at the trial of this case, appellant Puno tried to mitigate his liability by explaining that he was in dire need of money for the medication of his ulcers. 9

On these relatively simple facts, and as noted at the start of this opinion, three theories have been advanced as to what

crime was committed by appellants. The trial court cohered with the submission of the defense that the crime could not be kidnapping for ransom as charged in the information. We likewise agree.

Prefatorily, it is worth recalling an accepted tenet in criminal law that in the determination of the crime for which the accused should be held liable in those instances where his acts partake of the nature of variant offenses, and the same holds true with regard to the modifying or qualifying circumstances thereof, his motive and specific intent in perpetrating the acts complained of are invaluable aids in arriving at a correct appreciation and accurate conclusion thereon.

Thus, to illustrate, the motive of the accused has been held to be relevant or essential to determine the specific nature of the crime as, for instance, whether a murder was committed in the furtherance of rebellion in which case the latter absorbs the former, or whether the accused had his own personal motives for committing the murder independent of his membership in the rebellious movement in which case rebellion and murder would constitute separate offenses. 10 Also, where injuries were inflicted on a person in authority who was not then in the actual performance of his official duties, the motive of the offender assumes importance because if the attack was by reason of the previous performance of official duties by the person in authority, the crime would be direct assault; otherwise, it would only be physical injuries. 11

In the case at bar, there is no showing whatsoever that appellants had any motive, nurtured prior to or at the time they committed the wrongful acts against complainant, other than the extortion of money from her under the compulsion of threats or intimidation. This much is admitted by both appellants, without any other esoteric qualification or dubious justification. Appellant Puno, as already stated, candidly laid the blame for his predicament on his need for funds for, in his own testimony, "(w)hile we were along the way Mam (sic) Corina was telling me "Beloy, I know your family very well and I know that your (sic) not (a) bad person, why are you doing this?" I told her "Mam, (sic), because I need money and I had an ulcer and that I have been getting an (sic) advances from our office but they refused to give me any bale (sic). . . ." 12

With respect to the specific intent of appellants vis-a-vis the charge that they had kidnapped the victim, we can rely on the proverbial rule of ancient respectability that for this crime to exist, there must be indubitable proof that the actual intent of the malefactors was to deprive the offended party of her liberty, 13 and not where such restraint of her freedom of action was merely an incident in the commission of another offense primarily intended by the offenders. Hence, as early as United States vs. Ancheta, 14 and consistently reiterated thereafter, 15 it has been held that the detention and/or forcible taking away of the victims by the accused, even for an appreciable period of time but for the primary and ultimate purpose of killing them, holds the offenders liable for taking their lives or such other offenses they committed in relation thereto, but the incidental deprivation of the victims' liberty does not constitute kidnapping or serious illegal detention.

That appellants in this case had no intention whatsoever to kidnap or deprive the complainant of her personal liberty is clearly demonstrated in the veritably confessional testimony of appellant Puno:

Q At what point did Mrs. Sarmiento handed (sic) the bag containing the P7,000.00 to your nephew?

A Santo Domingo Exit.

Q And how about the checks, where were you already when the checks was (sic) being handed to you?

A Also at the Sto. Domingo exit when she signed the checks.

Q If your intention was just to robbed (sic) her, why is it that you still did not allow her to stay at Sto. Domingo, after all you already received the money and the checks?

A Because we had an agreement with her that when she signed the checks we will take her to her house at Villa (sic) Verde.

Q And why did you not bring her back to her house at Valle Verde when she is (sic) already given you the checks?

A Because while we were on the way back I (sic) came to my mind that if we reach Balintawak or some other place along the way we might be apprehended by the police. So when we reached Santa Rita exit I told her "Mam (sic) we will already stop and allow you to get out of the car." 16

Neither can we consider the amounts given to appellants as equivalent to or in the nature of ransom, considering the immediacy of their obtention thereof from the complainant personally. Ransom, in municipal criminal law, is the money, price or consideration paid or demanded for redemption of a captured person or persons, a payment that releases from captivity. 17 It can hardly be assumed that when complainant readily gave the cash and checks demanded from her at gun point, what she gave under the circumstances of this case can be equated with or was in the concept of ransom in the law of kidnapping. These were merely amounts involuntarily surrendered by the victim upon the occasion of a robbery or of which she was summarily divested by appellants. Accordingly, while we hold that the crime committed is robbery as defined in Article 293 of the Code, we, however, reject the theory of the trial court that the same constitutes the highway robbery contemplated in and punished by Presidential Decree No. 532.

The lower court, in support of its theory, offers this ratiocination:

The court agrees that the crime is robbery. But it is also clear from the allegation in the information that the victim was carried away and extorted for more money. The accused admitted that the robbery was carried on from Araneta Avenue up to the North Superhighway. They likewise admitted that along the way they intimidated Ma. Socorro to produce more money that she had with her at the time for which reason Ma. Socorro, not having more cash, drew out three checks. . . .

In view of the foregoing the court is of the opinion that the crimes committed is that punishable under P.D. 532 (Anti-

Piracy and Anti-Highway Robbery Law of 1974) under which where robbery on the highway is accompanied by extortion the penalty is reclusion perpetua. 18

The Solicitor General concurs, with the observation that pursuant to the repealing clause in Section 5 of said decree, "P.D. No- 532 is a modification of the provisions of the Revised Penal Code, particularly Article 267 which are inconsistent with it." 19 Such opinion and complementary submission consequently necessitate an evaluation of the correct interplay between and the legal effects of Presidential Decree No. 532 on the pertinent Provisions of the Revised Penal Code, on which matter we are not aware that any definitive pronouncement has as yet been made.

Contrary to the postulation of the Solicitor General, Presidential Decree No. 532 is not a modification of Article 267 of the Revised Penal Code on kidnapping and serious illegal detention, but of Articles 306 and 307 on brigandage. This is evident from the fact that the relevant portion thereof which treats of "highway robbery" invariably uses this term in the alternative and synonymously with brigandage, that is, as "highway robbery/brigandage." This is but in line with our previous ruling, and which still holds sway in criminal law, that highway robbers (ladrones) and brigands are synonymous. 20

Harking back to the origin of our law on brigandage (bandolerismo) in order to put our discussion thereon in the proper context and perspective, we find that a band of brigands, also known as highwaymen or freebooters, is more than a gang of ordinary robbers. Jurisprudence on the matter reveals that during the early part of the American occupation of our country, roving bands were organized for robbery and pillage and since the then existing law against robbery was inadequate to cope with such moving bands of outlaws, the Brigandage Law was passed. 21

The following salient distinctions between brigandage and robbery are succinctly explained in a treatise on the subject and are of continuing validity:

The main object of the Brigandage Law is to prevent the formation of bands of robbers. The heart of the offense

consists in the formation of a band by more than three armed persons for the purpose indicated in art. 306. Such formation is sufficient to constitute a violation of art. 306. It would not be necessary to show, in a prosecution under it, that a member or members of the band actually committed robbery or kidnapping or any other purpose attainable by violent means. The crime is proven when the organization and purpose of the band are shown to be such as are contemplated by art 306. On the other hand, if robbery is committed by a band, whose members were not primarily organized for the purpose of committing robbery or kidnapping, etc., the crime would not be brigandage, but only robbery. Simply because robbery was committed by a band of more than three armed persons, it would not follow that it was committed by a band of brigands. In the Spanish text of art. 306, it is required that the band "sala a los campos para dedicarse a robar." 22 (Emphasis supplied).

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particular robbery, the crime is only robbery, or robbery in band if there are at least four armed participants. 23 The martial law legislator, in creating and promulgating Presidential Decree No. 532 for the objectives announced therein, could not have been unaware of that distinction and is presumed to have adopted the same, there being no indication to the contrary. This conclusion is buttressed by the rule on contemporaneous construction, since it is one drawn from the time when and the circumstances under which the decree to be construed originated. Contemporaneous exposition or construction is the best and strongest in the law. 24

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetrated by outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts of robbery committed against only a predetermined or particular victim, is evident from the preambular clauses thereof, to wit:

WHEREAS, reports from law-enforcement agencies reveal that lawless elements are still committing acts of depredation upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility

of the nation and stunting the economic and social progress of the people:

WHEREAS, such acts of depredations constitute . . . highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries;

WHEREAS, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredaions by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacles to the economic, social, educational and community progress of the people. (Emphasis supplied).

Indeed, it is hard to conceive of how a single act of robbery against a particular person chosen by the accused as their specific victim could be considered as committed on the "innocent and defenseless inhabitants who travel from one place to another," and which single act of depredation would be capable of "stunting the economic and social progress of the people" as to be considered "among the highest forms of lawlessness condemned by the penal statutes of all countries," and would accordingly constitute an obstacle "to the economic, social, educational and community progress of the people, " such that said isolated act would constitute the highway robbery or brigandage contemplated and punished in said decree. This would be an exaggeration bordering on the ridiculous.

True, Presidential Decree No. 532 did introduce amendments to Articles 306 and 307 of the Revised Penal Code by increasing the penalties, albeit limiting its applicability to the offenses stated therein when committed on the highways and without prejudice to the liability for such acts if committed. Furthermore, the decree does not require that there be at least four armed persons forming a band of robbers; and the presumption in the Code that said accused are brigands if they use unlicensed firearms no longer obtains under the decree. But, and this we broadly underline, the essence of brigandage under the Code as a crime of depredation wherein the unlawful acts are directed not only against specific, intended or preconceived victims, but against any and all prospective victims anywhere on the highway and whosoever they may potentially be, is the same as the concept of brigandage which is maintained in

Presidential Decree No. 532, in the same manner as it was under its aforementioned precursor in the Code and, for that matter, under the old Brigandage Law. 25

Erroneous advertence is nevertheless made by the court below to the fact that the crime of robbery committed by appellants should be covered by the said amendatory decree just because it was committed on a highway. Aside from what has already been stressed regarding the absence of the requisite elements which thereby necessarily puts the offense charged outside the purview and intendment of that presidential issuance, it would be absurd to adopt a literal interpretation that any unlawful taking of property committed on our highways would be covered thereby. It is an elementary rule of statutory construction that the spirit or intent of the law should not be subordinated to the letter thereof. Trite as it may appear, we have perforce to stress the elementary caveat that he who considers merely the letter of an instrument goes but skin deep into its meaning, 26 and the fundamental rule that criminal justice inclines in favor of the milder form of liability in case of doubt.

If the mere fact that the offense charged was committed on a highway would be the determinant for the application of Presidential Decree No. 532, it would not be farfetched to expect mischievous, if not absurd, effects on the corpus of our substantive criminal law. While we eschew resort to a reductio ad absurdum line of reasoning, we apprehend that the aforestated theory adopted by the trial court falls far short of the desideratum in the interpretation of laws, that is, to avoid absurdities and conflicts. For, if a motor vehicle, either stationary or moving on a highway, is forcibly taken at gun point by the accused who happened to take a fancy thereto, would the location of the vehicle at the time of the unlawful taking necessarily put the offense within the ambit of Presidential Decree No. 532, thus rendering nugatory the categorical provisions of the Anti-Carnapping Act of 1972? 27 And, if the scenario is one where the subject matter of the unlawful asportation is large cattle which are incidentally being herded along and traversing the same highway and are impulsively set upon by the accused, should we apply Presidential Decree No. 532 and completely disregard the explicit prescriptions in the Anti-Cattle Rustling Law of 1974? 28

We do not entertain any doubt, therefore, that the coincidental fact that the robbery in the present case was committed inside a car which, in the natural course of things, was casually operating on a highway, is not within the situation envisaged by Section 2(e) of the decree in its definition of terms. Besides, that particular provision precisely defines "highway robbery/brigandage" and, as we have amply demonstrated, the single act of robbery conceived and committed by appellants in this case does not constitute highway robbery or brigandage.

Accordingly, we hold that the offense committed by appellants is simple robbery defined in Article 293 and punished under Paragraph 5 of Article 294 of the Revised Penal Code with prision correccional in its maximum period to prision mayor in its medium period. Appellants have indisputably acted in conspiracy as shown by their concerted acts evidentiary of a unity of thought and community of purpose. In the determination of their respective liabilities, the aggravating circumstances of craft 29 shall be appreciated against both appellants and that of abuse of confidence shall be further applied against appellant Puno, with no mitigating circumstance in favor of either of them. At any rate, the intimidation having been made with the use of a firearm, the penalty shall be imposed in the maximum period as decreed by Article 295 of the Code.

We further hold that there is no procedural obstacle to the conviction of appellants of the crime of simple robbery upon an information charging them with kidnapping for ransom, since the former offense which has been proved is necessarily included in the latter offense with which they are charged. 30 For the former offense, it is sufficient that the elements of unlawful taking, with intent to gain, of personal property through intimidation of the owner or possessor thereof shall be, as it has been, proved in the case at bar. Intent to gain (animus lucrandi) is presumed to be alleged in an information where it is charged that there was unlawful taking (apoderamiento) and appropriation by the offender of the things subject of the robbery. 31

These foregoing elements are necessarily included in the information filed against appellants which, as formulated, allege that they wilfully, unlawfully and feloniously kidnapped and extorted ransom from the complainant. Such

allegations, if not expressly but at the very least by necessary implication, clearly convey that the taking of complainant's money and checks (inaccurately termed as ransom) was unlawful, with intent to gain, and through intimidation. It cannot be logically argued that such a charge of kidnapping for ransom does not include but could negate the presence of any of the elements of robbery through intimidation of persons. 32

WHEREFORE, the assailed judgment of the trial court is hereby SET ASIDE and another one is rendered CONVICTING accused-appellants Isabelo Puno y Guevarra and Enrique Amurao y Puno of robbery as Punished in Paragraph 5 of Article 294, in relation to Article 295, of the Revised Penal Code and IMPOSING on each of them an indeterminate sentence of four (4) years and two (2) months of prision correccional, as minimum, to ten (10) years of prision mayor, as maximum, and jointly and severally pay the offended party, Maria del Socorro M. Sarmiento, the amounts of P7,000.00 as actual damages and P20,000.00 as moral damages, with costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Nocon and Campos, Jr., JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-47722 July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.

Antonio Z. Oanis in his own behalf.Maximo L. Valenzuela for appellant Galanta.Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.

MORAN, J.:

Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of from one year and six months to two years and two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment.

In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta, and privates

Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death.

These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson.

On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he fired at him.

The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by

both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial court.

The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned below.

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you."

But at that precise moment, he was struck by a chair which had been placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him.

Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he

uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).

It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation — not condonation — should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation.

The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de dañar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the

intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance of alevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is present — appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed.

For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs.

Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions

PARAS, J., dissenting:

Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by telegram dispatched on December 25, 1938, to get Balagtas "dead or alive". Among those assigned to the task of carrying out the said order, were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the telegram received by the Provincial Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta and a Constabulary private, after being told by the Provincial Inspector to gather information about Balagtas, "to arrest him and, if overpowered, to follow the instructions contained in the telegram," proceeded to the place where the house of Irene was located. Upon arriving thereat, Oanis approached Brigida Mallari, who was then gathering banana stalks in the yard, and inquired for the room of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell where Irene's paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon reaching the room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are Balagtas," started shooting the man who was found by them lying down beside a woman. The man was thereby killed, but Balagtas was still alive, for it turned out that the person shot by Oanis and Galanta was one Serapio Tecson.

Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance of Nueva Ecija, however, convicted them only of homicide through reckless imprudence and sentenced them each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2 months of prision correctional, to jointly and severally indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis and Galanta have appealed.

In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued by the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead or alive, in

the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with revolvers in his possession and a record that made him extremely dangerous and a public terror, the Constabulary authorities were justified in ordering his arrest, whether dead or alive. In view of said order and the danger faced by the appellants in carrying it out, they cannot be said to have acted feloniously in shooting the person honestly believed by them to be the wanted man. Conscious of the fact that Balagtas would rather kill than be captured, the appellants did not want to take chances and should not be penalized for such prudence. On the contrary, they should be commended for their bravery and courage bordering on recklessness because, without knowing or ascertaining whether the wanted man was in fact asleep in his room, they proceeded thereto without hesitation and thereby exposed their lives to danger.

The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that effect, was in violation of the express order given by the Constabulary authorities in Manila and which was shown to the appellants. In the second place, it would indeed be suicidal for the appellants or, for that matter, any agent of the authority to have waited until they have been overpowered before trying to put our such a character as Balagtas. In the third place, it is immaterial whether or not the instruction given by the Provincial Inspector was legitimate and proper, because the facts exist that the appellants acted in conformity with the express order of superior Constabulary authorities, the legality or propriety of which is not herein questioned.

The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in view only of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the realization that the life of Serapio Tecson was not vainly sacrificed, for the incident will always serve as a loud warning to any one desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly constituted authorities will, upon proper order, enforce the summary forfeiture of his life.

In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an order issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be held criminally liable even if the person killed by them was not Anselmo Balagtas, but Serapio Tecson, because they did so under an honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).

It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony although the wrongful act done be different from that which he intended; but said article is clearly inapplicable since the killing of the person who was believed to be Balagtas was, as already stated, not wrongful or felonious.

The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the defendant therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another by mistake, would not be exempted from criminal liability if he actually injured or killed Hilario Lauigan, there being a malicious design on his part. The other case involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in point, as it appears that the defendants therein killed one Pedro Almasan after he had already surrendered and allowed himself to be bound and that the said defendants did not have lawful instructions from superior authorities to capture Almasan dead or alive.

The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with costs de oficio.

HONTIVEROS, J., dissenting:

According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be taken by storm without regard to his life which he has, by his conduct, already forfeited," whenever said criminal offers resistance or does something which places his captors in

danger of imminent attack. Precisely, the situation which confronted the accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24, 1938, was very similar to this. It must be remembered that both officers received instructions to get Balagtas "dead or alive" and according to the attitude of not only the said appellants but also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija, it may be assumed that said instructions gave more emphasis to the first part; namely, to take him dead. It appears in the record that after the shooting, and having been informed of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what they had done. That was when all parties concerned honestly believed that the dead person was Balagtas himself, a dangerous criminal who had escaped from his guards and was supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon arriving at the house of Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas was upstairs. Appellants found there asleep a man closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But the supposed criminal showed his intention to attack the appellants, a conduct easily explained by the fact that he should have felt offended by the intrusion of persons in the room where he was peacefully lying down with his mistress. In such predicament, it was nothing but human on the part of the appellants to employ force and to make use of their weapons in order to repel the imminent attack by a person who, according to their belief, was Balagtas It was unfortunate, however that an innocent man was actually killed. But taking into consideration the facts of the case, it is, according to my humble opinion, proper to apply herein the doctrine laid down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an innocent mistake of fact committed without any fault or carelessness on the part of the accused, who having no time to make a further inquiry, had no alternative but to take the facts as they appeared to them and act immediately.

The decision of the majority, in recognition of the special circumstances of this case which favored the accused-appellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked, and therefore, according to Article 69 of the Revised Penal Code, the imposable penalty should be one which is lower by one or two degrees than that prescribed by law. This incomplete

justifying circumstance is that defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty or in the lawful exercise of a right or office." I believe that the application of this circumstance is not proper. Article 69 of the Revised Penal Code provides as follows:

Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. — A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking.

This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and which was also taken from Article 87 of the Spanish Penal Code of 1870.

Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of the Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that the justifying circumstances and circumstances exempting from liability which are the subject matter of this article are the following: self-defense, defense of relatives, defense of strangers, state of necessity and injury caused by mere accident. Accordingly, justifying circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or the lawful exercise of a right, calling or office, cannot be placed within its scope.

The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal Code of 1870 which is the source of Article 69 of our Code says:

Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado por una fuerza inrresistible o impulsado por miedo insuperable de un mal igual o mayor, o en cumplimiento de un deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud

de obediencia debida, ni del que incurre en alguna omision hallandose impedido por causa legitima o insuperable, puede tener aplicacion al articulo que comentamos. Y la razon es obvia. En ninguna de estas execiones hay pluralidad de requisitos. La irrespondabilidad depende de una sola condicion. Hay o no perturbacion de la razon; el autor del hecho es o no menor de nueve años; existe o no violencia material o moral irresistible, etc., etc.; tal es lo que respectivamente hay que examinar y resolver para declarar la culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el texto que va al frente de estas lineas rquiere, para que se imponga al autor del hecho la penalidad excepcional que establece; esto es, que falten algunos requisitos de los que la ley exige para eximir de responsabilidad, y que concurran el mayor numero de ellos, toda vez que, en los casos referidos, la ley no exige multiples condiciones.

It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required by the law to justify the same or exempt from criminal liability. The word "conditions" should not be confused with the word "requisites". In dealing with justifying circumstance No. 5 Judge Guevara states: "There are two requisites in order that this circumstance may be taken into account: (a) That the offender acted in the performance of his duty or in the lawful exercise of a right; and (b) That the injury or offense committed be the necessary consequence of the performance of a duty or the lawful exercise of a right or office." It is evident that these two requisites concur in the present case if we consider the intimate connection between the order given to the appellant by Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas who was with a bailarina named Irene, the conduct of said appellants in questioning Brigida Mallari and giving a warning to the supposed criminal when both found him with Irene, and the statement made by Capt. Monsod after the shooting.

If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor of the acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this accused ever hit Serapio Tecson. Galanta was armed in the afternoon of December

24, 1938, with a .45 caliber revolver (Exhibit L). He so testified and was corroborated by the unchallenged testimony of his superior officer Sgt. Valeriano Serafica. According to this witness, since Galanta was made a corporal of the Constabulary he was given, as part of his equipment, revolver Exhibit L with a serial No. 37121. This gun had been constantly used by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from his trunk in the barracks on the night of December 24, 1938, upon order of Captain Monsod, it was the same revolver which was given to the witness with five .45 caliber bullets and one empty shell. Fourteen unused bullets were also taken from Galanta by Sergeant Serafica, thus completing his regular equipment of twenty bullets which he had on the morning of December 24, 1938, when Sergeant Serafica made the usual inspection of the firearms in the possession of the non-commissioned officers and privates of the constabulary post at Cabanatuan. Galanta stated that he had fired only one shot and missed. This testimony is corroborated by that of a ballistic expert who testified that bullets exhibits F and O, — the first being extracted from the head of the deceased, causing wound No. 3 of autopsy report Exhibit C and the second found at the place of the shooting, — had not been fired from revolver Exhibit L nor from any other revolver of the constabulary station in Cabanatuan. It was impossible for the accused Galanta to have substituted his revolver because when Exhibit L was taken from him nobody in the barracks doubted that the deceased was none other than Balagtas. Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta should carry along another gun, according to the natural course of things. On the other hand, aside from wound No. 3 as above stated, no other wound may be said to have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's entrance was only 8 mm., the caliber should be .32 and not .45, because according to the medico-legal expert who testified in this case, a bullet of a .45 caliber will produce a wound entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who performed the autopsy appeared to have been caused by bullets of a lesser caliber. In consequence, it can

be stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson and therefore there is no reason why he should be declared criminally responsible for said death.