Crim - Part I-III Cases

Cases | CRIMINAL LAW I

SECOND DIVISION

G.R. No. L-64279 April 30, 1984

ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners, vs.JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch 129, acting for REGIONAL TRIAL COURT of Camarines Norte, now presided over by JUDGE NICANOR ORIÑO, Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V. ZENAROSA, ET AL., respondents.

AQUINO, J.:ñé+.£ªwph!1

At issue in this case is the enforceability, before publication in the Official Gazette of June 14, 1982, of Presidential Executive Order No. 626-A dated October 25, 1980, providing for the confiscation and forfeiture by the government of carabaos transported from one province to another.

Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in an Isuzu ten-wheeler truck in the evening of April 2, 1982 twenty-six carabaos and a calf from Sipocot, Camarines Sur with Padre Garcia, Batangas, as the destination.

They were provided with (1) a health certificate from the provincial veterinarian of Camarines Sur, issued under the Revised Administrative Code and Presidential Decree No. 533, the Anti-Cattle Rustling Law of 1974; (2) a permit to transport large cattle issued under the authority of the provincial commander; and (3) three certificates of inspection, one from the Constabulary command attesting that the carabaos were not included in the list of lost, stolen and questionable animals; one from the LIvestock inspector, Bureau of Animal Industry of Libmanan, Camarines Sur and one from the mayor of Sipocot.

In spite of the permit to transport and the said four certificates, the carabaos, while passing at Basud, Camarines Norte, were confiscated by Lieutenant Arnulfo V. Zenarosa, the town's police station commander, and by Doctor Bella S. Miranda, provincial veterinarian. The confiscation was basis on the aforementioned Executive Order No. 626-A which provides "that henceforth, no carabao, regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabaos or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government to be distributed ... to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos" (78 OG 3144).

Doctor Miranda distributed the carabaos among twenty-five farmers of Basud, and to a farmer from the Vinzons municipal nursery (Annex 1).

The Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the recovery of the carabaos allegedly valued at P70,000 and damages of P92,000. The replevin order could not be executed by the sheriff. In his order of April 25, 1983 Judge Domingo Medina Angeles, who heard the case at Daet and who was later transferred

to Caloocan City, dismissed the case for lack of cause of action.

The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section 25 of the Interim Rules and pursuant to Republic Act No. 5440, a 1968 law which superseded Rule 42 of the Rules of Court.

We hold that the said executive order should not be enforced against the Pesigans on April 2, 1982 because, as already noted, it is a penal regulation published more than two months later in the Official Gazette dated June 14, 1982. It became effective only fifteen days thereafter as provided in article 2 of the Civil Code and section 11 of the Revised Administrative Code.

The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars and regulations which prescribe penalties. Publication is necessary to apprise the public of the contents of the regulations and make the said penalties binding on the persons affected thereby. (People vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting vs. Central Bank of the Phils., 104 Phil. 573; Balbuna vs. Secretary of Education, 110 Phil. 150.)

The Spanish Supreme Court ruled that "bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las mismas por el Gobierno en uso de su potestad (1 Manresa, Codigo Civil, 7th Ed., p. 146.)

Thus, in the Que Po Lay case, a person, convicted by the trial court of having violated Central Bank Circular No. 20 and sentenced to six months' imprisonment and to pay a fine of P1,000, was acquitted by this Court because the circular was published in the Official Gazette three months after his conviction. He was not bound by the circular.

That ruling applies to a violation of Executive Order No. 626-A because its confiscation and forfeiture provision or sanction makes it a penal statute. Justice and fairness dictate that the public must be informed of that provision by means of publication in the Gazette before violators of the executive order can be bound thereby.

The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37 SCRA 230 and Philippine Blooming Mills vs. Social Security System, 124 Phil. 499, cited by the respondents, do not involve the enforcement of any penal regulation.

Commonwealth Act No. 638 requires that all Presidential executive orders having general applicability should be published in the Official Gazette. It provides that "every order or document which shag prescribe a penalty shall be deemed to have general applicability and legal effect."

Indeed, the practice has always been to publish executive orders in the Gazette. Section 551 of the Revised Administrative Code provides that even bureau "regulations and orders shall become effective only when approved by the Department Head and published in the Official Gazette or otherwise publicly promulgated". (See Commissioner of Civil Service vs. Cruz, 122 Phil. 1015.)

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CRIMINAL LAW I | Cases

In the instant case, the livestock inspector and the provincial veterinarian of Camarines Norte and the head of the Public Affairs Office of the Ministry of Agriculture were unaware of Executive Order No. 626-A. The Pesigans could not have been expected to be cognizant of such an executive order.

It results that they have a cause of action for the recovery of the carabaos. The summary confiscation was not in order. The recipients of the carabaos should return them to the Pesigans. However, they cannot transport the carabaos to Batangas because they are now bound by the said executive order. Neither can they recover damages. Doctor Miranda and Zenarosa acted in good faith in ordering the forfeiture and dispersal of the carabaos.

WHEREFORE, the trial court's order of dismissal and the confiscation and dispersal of the carabaos are reversed and set aside. Respondents Miranda and Zenarosa are ordered to restore the carabaos, with the requisite documents, to the petitioners, who as owners are entitled to possess the same, with the right to dispose of them in Basud or Sipocot, Camarines Sur. No costs.

SO ORDERED.1äwphï1.ñët

Separate Opinions

ABAD SANTOS, J., concurring:

The Pesigans are entitled to the return of their carabaos or the value of each carabao which is not returned for any reason. The Pesigans are also entitled to a reasonable rental for each carabao from the twenty six farmers who used them. The farmers should not enrich themselves at the expense of the Pesigans.

ABAD SANTOS, J., concurring:

The Pesigans are entitled to the return of their carabaos or the value of each carabao which is not returned for any reason. The Pesigans are also entitled to a reasonable rental for each carabao from the twenty six farmers who used them. The farmers should not enrich themselves at the expense of the Pesigans.

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,

vs.HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of

the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant

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petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a

particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general

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applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready access to the legislative records—no such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially

and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."

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From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect.

SO ORDERED.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished "presidential issuances" to have binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law. My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and under all circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of their existence could have conducted themselves in accordance with their provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems could arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked. There must still be that process of balancing to determine whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot

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have the juridical force of a constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstances and not subject to arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey before they can be punished for its violation, 1 citing the settled principle based on due process enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and specially informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that "Ignorance of the law excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its publication which is the

period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the Official Gazette, among them, "important legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not all legislative acts are required to be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is the Constitution, can assume that role.

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In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general applicability ineffective, until due publication thereof.

EN BANC

G.R. Nos. L-33466-67 April 20, 1983

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MAMERTO NARVAEZ, defendant-appellant.

MAKASIAR, J.:

This is an appeal from the decision of the Court of First Instance of South Cotabato, Branch I, in Criminal Cases Nos. 1815 and 1816 for murder which, after a joint trial, resulted in the conviction of the accused in a decision rendered on September 8, 1970, with the following pronouncement:

Thus, we have a crime of MURDER qualified by treachery with the aggravating circumstance of evident premeditation offset by the mitigating circumstance of voluntary surrender. The proper penalty imposable, therefore, is RECLUSION PERPETUA (Arts. 248 and 64, Revised Penal Code).

Accordingly, finding Mamerto Narvaez guilty beyond reasonable doubt of the crime of murder,

(a) In Criminal Case No. 1815, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the deceased Davis Q. Fleischer in the sum of P 12,000.00 as compensatory damages, P 10,000.00 as moral damages, P 2,000.00 as attorney's fees, the offended party having been represented by a private prosecutor, and to pay the costs;

(b) In Criminal Case No. 1816, he is hereby sentenced to RECLUSION PERPETUA, to indemnify the heirs of the deceased Flaviano Rubia in the sum of P12,000.00 as compensatory damages, P10,000.00 as moral damages, P2,000.00 as attorney's fees, the offended party having been represent by a private prosecutor, and to pay the costs (p. 48, rec.).

The facts are summarized in the People's brief, as follows:

At about 2:30 in the afternoon of August 22, 1968, Graciano Juan, Jesus Verano and Cesar Ibanez together with the two deceased Davis Fleischer and Flaviano Rubia, were fencing the land of George Fleischer,

father of deceased Davis Fleischer. The place was in the boundary of the highway and the hacienda owned by George Fleischer. This is located in the municipality of Maitum, South Cotabato. At the place of the fencing is the house and rice drier of appellant Mamerto Narvaez (pp. 179-182, t.s.n., Pieza II). At that time, appellant was taking his rest, but when he heard that the walls of his house were being chiselled, he arose and there he saw the fencing going on. If the fencing would go on, appellant would be prevented from getting into his house and the bodega of his ricemill. So he addressed the group, saying 'Pare, if possible you stop destroying my house and if possible we will talk it over what is good,' addressing the deceased Rubia, who is appellant's compadre. The deceased Fleischer, however, answered: 'No, gademit, proceed, go ahead.' Appellant apparently lost his equilibrium and he got his gun and shot Fleischer, hitting him. As Fleischer fell down, Rubia ran towards the jeep, and knowing there is a gun on the jeep, appellant fired at Rubia, likewise hitting him (pp. 127-133, t.s.n., Defense transcript). Both Fleischer and Rubia died as a result of the shotting' (pp. 9-14, t.s.n., Pieza I, pp. 8-9, Appellant's Brief, p.161, rec.).

It appears, however, that this incident is intertwined with the long drawn out legal battle between the Fleischer and Co., Inc. of which deceased Fleischer was the secretary-treasurer and deceased Rubia the assistant manager, on the one hand, and the land settlers of Cotabato, among whom was appellant.

From the available records of the related cases which had been brought to the Court of Appeals (CA-G.R. Nos. 28858-R and 50583-R) and to this Court on certiorari (G.R. No. L-26757 and L-45504), WE take judicial notice of the following antecedent facts:

Appellant was among those persons from northern and central Luzon who went to Mindanao in 1937 and settled in Maitum, a former sitio of Kiamba and now a separate municipality of South Cotabato. He established his residence therein, built his house, cultivated the area, and was among those who petitioned then President Manuel L. Quezon to order the subdivision of the defunct Celebes Plantation and nearby Kalaong Plantation totalling about 2,000 hectares, for distribution among the settlers.

Shortly thereafter, Fleischer and Company, headed by George W. Fleischer, an American landowner in Negros Oriental, filed sales application No. 21983 on June 3, 1937 over the same area formerly leased and later abandoned by Celebes Plantation Company, covering 1,017.2234 hectares.

Meanwhile, the subdivision was ordered and a public land surveyor did the actual survey in 1941 but the survey report was not submitted until 1946 because of the outbreak of the second world war. According to the survey, only 300 hectares Identified as Lots Nos. 22, 26 and 38, Ps. 176 Kiamba, were set aside for Sales Application No. 21983, while the rest were subdivided into sublots of 5 to 6 hectares each to be distributed among the settlers (pp. 32-33, G.R. No. L-45504).

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The 300 hectares set aside for the sales application of Fleischer and Company was declared open for disposition, appraised and advertised for public auction. At the public auction held in Manila on August 14, 1948, Fleischer and Company was the only bidder for P6,000.00. But because of protests from the settlers the corresponding award in its favor was held in abeyance, while an investigator was sent by the Director of Lands to Kiamba in the person of Atty. Jose T. Gozon Atty. Gozon came back after ten days with an amicable settlement signed by the representative of the settlers. This amicable settlement was later repudiated by the settlers, but the Director of Lands, acting upon the report of Atty. Gozon, approved the same and ordered the formal award of the land in question to Fleischer and Company. The settlers appealed to the Secretary of Agriculture and Natural Resources, who, however, affirmed the decision in favor of the company.

On May 29, 1950, the settlers filed Civil Case No. 240 in the Court of First Instance of Cotabato which then consisted only of one sala, for the purpose of annulling the order of the Secretary of Agriculture and Natural Resources which affirmed the order of the Director of Lands awarding the contested land to the company. The settlers as plaintiffs, lost that case in view of the amicable settlement which they had repudiated as resulting from threats and intimidation, deceit, misrepresentation and fraudulent machination on the part of the company. They appealed to the Court of Appeals (CA-G.R. No. 28858-R) which likewise affirmed on August 16, 1965 the decision of the Court of First Instance in favor of the company.

This resulted in the ouster of the settlers by an order of the Court of First Instance dated September 24, 1966, from the land which they had been occupying for about 30 years. Among those ejected was the appellant who, to avoid trouble, voluntarily dismantled his house, built in 1947 at a cost of around P20,000.00, and transferred to his other house which he built in 1962 or 1963 near the highway. The second house is not far from the site of the dismantled house. Its ground floor has a store operated by Mrs. June Talens who was renting a portion thereof. He also transferred his store from his former residence to the house near the highway. Aside from the store, he also had a rice mill located about 15 meters east of the house and a concrete pavement between the rice mill and the house, which is used for drying grains and copra.

On November 14, 1966, appellant was among the settlers on whose behalf Jose V. Gamboa and other leaders filed Civil Case No. 755 in the Court of First Instance of Cotabato, Branch I. to obtain an injunction or annulment of the order of award with prayer for preliminary injunction. During the pendency of this case, appellant on February 21, 1967 entered into a contract of lease with the company whereby he agreed to lease an area of approximately 100 to 140 square meters of Lot No. 38 from the company (Exh. 9, p. 1, Folder of Exhibits for Defense) for a consideration of P16.00 monthly. According to him, he signed the contract although the ownership of the land was still uncertain, in order to avoid trouble, until the question of ownership could be decided. He never paid the agreed rental, although he alleges that the milling job they did for Rubia was considered payment. On June 25, 1968, deceased Fleischer wrote him a letter with the following tenor:

You have not paid six months rental to Fleischers & Co., Inc. for that portion of land in which your house and ricemill are located as per agreement executed on February 21, 1967. You have not paid as as even after repeated attempts of collection made by Mr. Flaviano Rubia and myself.

In view of the obvious fact that you do not comply with the agreement, I have no alternative but to terminate our agreement on this date.

I am giving you six months to remove your house, ricemill, bodega, and water pitcher pumps from the land of Fleischers & Co., Inc. This six- month period shall expire on December 31, 1966.

In the event the above constructions have not been removed within the six- month period, the company shall cause their immediate demolition (Exhibit 10, p. 2, supra).

On August 21, 1968, both deceased, together with their laborers, commenced fencing Lot 38 by putting bamboo posts along the property line parallel to the highway. Some posts were planted right on the concrete drier of appellant, thereby cutting diagonally across its center (pp. 227-228, t.s.n., Vol. 2), with the last post just adjacent to appellant's house (p. 231, t.s.n., supra). The fence, when finished, would have the effect of shutting off the accessibility to appellant's house and rice mill from the highway, since the door of the same opens to the Fleischers' side. The fencing continued on that fateful day of August 22, 1968, with the installation of four strands of barbed wire to the posts.

At about 2:30 p.m. on the said day, appellant who was taking a nap after working on his farm all morning, was awakened by some noise as if the wall of his house was being chiselled. Getting up and looking out of the window, he found that one of the laborers of Fleischer was indeed chiselling the wall of his house with a crowbar (p. 129, t.s.n., Vol. 6), while deceased Rubia was nailing the barbed wire and deceased Fleischer was commanding his laborers. The jeep used by the deceased was parked on the highway. The rest of the incident is narrated in the People's Brief as above-quoted. Appellant surrendered to the police thereafter, bringing with him shotgun No. 1119576 and claiming he shot two persons (Exh. Pp. 31, Defense Exhibits).

Appellant now questions the propriety of his conviction, assigning the following errors:

First Assignment of Error: That the lower court erred in convicting defendant-appellant despite the fact that he acted in defense of his person; and

Second Assignment of Error: That the court a quo also erred in convicting defendant-appellant although he acted in defense of his rights (p. 20 of Appellant's Brief, p. 145, rec.).

The act of killing of the two deceased by appellant is not disputed. Appellant admitted having shot them from the window of his house with the shotgun which he surrendered to the police authorities. He claims, however, that he did so in defense of his person and of his rights, and therefore he should be exempt from criminal liability.

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Defense of one's person or rights is treated as a justifying circumstance under Art. 11, par. 1 of the Revised Penal Code, but in order for it to be appreciated, the following requisites must occur:

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself (Art. 11, par. 1, Revised Penal Code, as amended).

The aggression referred to by appellant is the angry utterance by deceased Fleischer of the following words: "Hindi, sigue, gademit, avante", in answer to his request addressed to his compadre, the deceased Rubia, when he said, "Pare, hinto mona ninyo at pag-usapan natin kung ano ang mabuti" (pp. 227-229, t.s.n., Vol. 6). This was in reaction to his having been awakened to see the wall of his house being chiselled. The verbal exchange took place while the two deceased were on the ground doing the fencing and the appellant was up in his house looking out of his window (pp. 225-227, supra). According to appellant, Fleischer's remarks caused this reaction in him: "As if, I lost my senses and unknowingly I took the gun on the bed and unknowingly also I shot Mr. Fleischer, without realizing it, I shot Mr. Fleischer" (p. 132, supra). As for the shooting of Rubia, appellant testified:

When I shot Davis Fleischer, Flaviano Rubia was nailing and upon hearing the shot, Mr. Rubia looked at Mr. Fleischer and when Mr. Fleischer fell down, Mr. Rubia ran towards the jeep and knowing that there was a firearm in the jeep and thinking that if he will take that firearm he will kill me, I shot at him (p. 132, supra, Emphasis supplied).

The foregoing statements of appellant were never controverted by the prosecution. They claim, however, that the deceased were in lawful exercise of their rights of ownership over the land in question, when they did the fencing that sealed off appellant's access to the highway.

A review of the circumstances prior to the shooting as borne by the evidence reveals that five persons, consisting of the deceased and their three laborers, were doing the fencing and chiselling of the walls of appellant's house. The fence they were putting up was made of bamboo posts to which were being nailed strands of barbed wire in several layers. Obviously, they were using tools which could be lethal weapons, such as nail and hammer, bolo or bamboo cutter, pliers, crowbar, and other necessary gadgets. Besides, it was not disputed that the jeep which they used in going to the place was parked just a few steps away, and in it there was a gun leaning near the steering wheel. When the appellant woke up to the sound of the chiselling on his walls, his first reaction was to look out of the window. Then he saw the damage being done to his house, compounded by the fact that his house and rice mill will be shut off from the highway by the fence once it is finished. He therefore appealed to his compadre, the deceased Rubia, to stop what they were doing and to talk things over with him. But

deceased Fleischer answered angrily with 'gademit' and directed his men to proceed with what they were doing.

The actuation of deceased Fleischer in angrily ordering the continuance of the fencing would have resulted in the further chiselling of the walls of appellant's house as well as the closure of the access to and from his house and rice mill-which were not only imminent but were actually in progress. There is no question, therefore, that there was aggression on the part of the victims: Fleischer was ordering, and Rubia was actually participating in the fencing. This was indeed aggression, not on the person of appellant, but on his property rights.

The question is, was the aggression unlawful or lawful? Did the victims have a right to fence off the contested property, to destroy appellant's house and to shut off his ingress and egress to his residence and the highway?

Article 30 of the Civil Code recognizes the right of every owner to enclose or fence his land or tenements.

However, at the time of the incident on August 22, 1968, Civil Case no. 755 for annulment of the order of award to Fleischer and Company was still pending in the Court of First Instance of Cotabato. The parties could not have known that the case would be dismissed over a year after the incident on August 22, 1968, as it was dismissed on January 23, 1970 on ground of res judicata, in view of the dismissal in 1965 (by the Court of Appeals) of Civil Case No. 240 filed in 1950 for the annulment of the award to the company, between the same parties, which the company won by virtue of the compromise agreement in spite of the subsequent repudiation by the settlers of said compromise agreement; and that such 1970 dismissal also carried the dismissal of the supplemental petition filed by the Republic of the Philippines on November 28, 1968 to annul the sales patent and to cancel the corresponding certificate of title issued to the company, on the ground that the Director of Lands had no authority to conduct the sale due to his failure to comply with the mandatory requirements for publication. The dismissal of the government's supplemental petition was premised on the ground that after its filing on November 28, 1968, nothing more was done by the petitioner Republic of the Philippines except to adopt all the evidence and arguments of plaintiffs with whom it joined as parties-plaintiffs.

Hence, it is reasonable to believe that appellant was indeed hoping for a favorable judgment in Civil Case No. 755 filed on November 14, 1966 and his execution of the contract of lease on February 21, 1967 was just to avoid trouble. This was explained by him during cross-examination on January 21, 1970, thus:

It happened this way: we talked it over with my Mrs. that we better rent the place because even though we do not know who really owns this portion to avoid trouble. To avoid trouble we better pay while waiting for the case because at that time, it was not known who is the right owner of the place. So we decided until things will clear up and determine who is really the owner, we decided to pay rentals (p. 169, t.s.n., Vol.6).

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In any case, Fleischer had given him up to December 31, 1968 (Exh.10, p. 2, Defense Exhibits) within which to vacate the land. He should have allowed appellant the peaceful enjoyment of his properties up to that time, instead of chiselling the walls of his house and closing appellant's entrance and exit to the highway.

The following provisions of the Civil Code of the Philippines are in point:

Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or a right to deprive another of the holding of a thing must invoke the aid of the competent court, if the holder should refuse to deliver the thing.

Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession by the means established by the laws and the Rules of Court (Articles 536 and 539, Civil Code of the Philippines).

Conformably to the foregoing provisions, the deceased had no right to destroy or cause damage to appellant's house, nor to close his accessibility to the highway while he was pleading with them to stop and talk things over with him. The assault on appellant's property, therefore, amounts to unlawful aggression as contemplated by law.

Illegal aggression is equivalent to assault or at least threatened assault of immediate and imminent kind (People vs. Encomiendas, 46 SCRA 522).

In the case at bar, there was an actual physical invasion of appellant's property which he had the right to resist, pursuant to Art. 429 of the Civil Code of the Philippines which provides:

Art. 429. The owner or lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof. For this purpose, he may use such force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property (Emphasis supplied).

The reasonableness of the resistance is also a requirement of the justifying circumstance of self-defense or defense of one's rights under paragraph 1 of Article 11, Revised Penal Code. When the appellant fired his shotgun from his window, killing his two victims, his resistance was disproportionate to the attack.

WE find, however, that the third element of defense of property is present, i.e., lack of sufficient provocation on the part of appellant who was defending his property. As a matter of fact, there was no provocation at all on his part, since he was asleep at first and was only awakened by the noise produced by the victims and their laborers. His plea for the deceased and their men to stop and talk things over with him was no provocation at all.

Be that as it may, appellant's act in killing the deceased was not justifiable, since not all the elements for justification are present. He should therefore be held responsible for

the death of his victims, but he could be credited with the special mitigating circumstance of incomplete defense, pursuant to paragraph 6, Article 13 of the Revised Penal Code.

The crime committed is homicide on two counts. The qualifying circumstance of treachery cannot be appreciated in this case because of the presence of provocation on the part of the deceased. As WE held earlier in People vs. Manlapaz (55 SCRA 598), the element of a sudden unprovoked attack is therefore lacking.

Moreover, in order to appreciate alevosia, "it must clearly appear that the method of assault adopted by the aggressor was deliberately chosen with a special view to the accomplishment of the act without risk to the assailant from any defense that the party assailed might have made. This cannot be said of a situation where the slayer acted instantaneously ..." (People vs. Cañete, 44 Phil. 481).

WE likewise find the aggravating (qualifying) circumstance of evident premeditation not sufficiently established. The only evidence presented to prove this circumstance was the testimony of Crisanto Ibañez, 37 years old, married, resident of Maitum, South Cotabato, and a laborer of Fleischer and Company, which may be summarized as follows:

On August 20, 1968 (two days before the incident) at about 7:00 A.M., he was drying corn near the house of Mr. and Mrs. Mamerto Narvaez at the crossing, Maitum, South Cotabato, when the accused and his wife talked to him. Mrs. Narvaez asked him to help them, as he was working in the hacienda. She further told him that if they fenced their house, there is a head that will be broken. Mamerto Narvaez added 'Noy, it is better that you will tell Mr. Fleischer because there will be nobody who will break his head but I will be the one.' He relayed this to Mr. Flaviano Rubia, but the latter told him not to believe as they were only Idle threats designed to get him out of the hacienda (pp. 297-303, t.s.n., Vol. 2).

This single evidence is not sufficient to warrant appreciation of the aggravating circumstance of evident premeditation. As WE have consistently held, there must be "direct evidence of the planning or preparation to kill the victim, .... it is not enough that premeditation be suspected or surmised, but the criminal intent must be evidenced by notorious outward acts evincing the determination to commit the crime" (People vs. Ordioles, 42 SCRA 238). Besides, there must be a "showing" that the accused premeditated the killing; that the culprit clung to their (his) premeditated act; and that there was sufficient interval between the premeditation and the execution of the crime to allow them (him) to reflect upon the consequences of the act" (People vs. Gida, 102 SCRA 70).

Moreover, the obvious bias of witness Crisanto Ibañez, as a laborer of the deceased Davis Fleischer, neutralizes his credibility.

Since in the case at bar, there was no direct evidence of the planning or preparation to kill the victims nor that the accused premeditated the killing, and clung to his premeditated act, the trial court's conclusion as to the presence of such circumstance may not be endorsed.

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Evident premeditation is further negated by appellant pleading with the victims to stop the fencing and destroying his house and to talk things over just before the shooting.

But the trial court has properly appreciated the presence of the mitigating circumstance of voluntary surrender, it appearing that appellant surrendered to the authorities soon after the shooting.

Likewise, We find that passion and obfuscation attended the commission of the crime. The appellant awoke to find his house being damaged and its accessibility to the highway as well as of his rice mill bodega being closed. Not only was his house being unlawfully violated; his business was also in danger of closing down for lack of access to the highway. These circumstances, coming so near to the time when his first house was dismantled, thus forcing him to transfer to his only remaining house, must have so aggravated his obfuscation that he lost momentarily all reason causing him to reach for his shotgun and fire at the victims in defense of his rights. Considering the antecedent facts of this case, where appellant had thirty years earlier migrated to this so-called "land of promise" with dreams and hopes of relative prosperity and tranquility, only to find his castle crumbling at the hands of the deceased, his dispassionate plea going unheeded-all these could be too much for any man-he should be credited with this mitigating circumstance.

Consequently, appellant is guilty of two crimes of homicide only, the killing not being attended by any qualifying nor aggravating circumstance, but extenuated by the privileged mitigating circumstance of incomplete defense-in view of the presence of unlawful aggression on the part of the victims and lack of sufficient provocation on the part of the appellant-and by two generic mitigating circumstance of voluntary surrender and passion and obfuscation.

Article 249 of the Revised Penal Code prescribes the penalty for homicide as reclusion temporal. Pursuant to Article 69, supra, the penalty lower by one or two degrees 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. Considering that the majority of the requirements for defense of property are present, the penalty may be lowered by two degrees, i.e., to prision correccional And under paragraph 5 of Article 64, the same may further be reduced by one degree, i.e., arresto mayor, because of the presence of two mitigating circumstances and no aggravating circumstance.

The civil liability of the appellant should be modified. In the case of Zulueta vs. Pan American World Airways (43 SCRA 397), the award for moral damages was reduced because the plaintiff contributed to the gravity of defendant's reaction. In the case at bar, the victims not only contributed but they actually provoked the attack by damaging appellant's properties and business. Considering appellant's standing in the community, being married to a municipal councilor, the victims' actuations were apparently designed to humiliate him and destroy his reputation. The records disclose that his wife, councilor Feliza Narvaez, was also charged in these two cases and detained without bail despite the absence of evidence linking her to the killings. She was dropped as a defendant only upon motion of the

prosecution dated October 31, 1968. (p. 14, CFI rec. of Crim. Case No. 1816), but acted upon on November 4, 1968 (p. 58, CFI rec. of Criminal Case No. 1815).

Moreover, these cases arose out of an inordinate desire on the part of Fleischer and Company, despite its extensive landholdings in a Central Visayan province, to extend its accumulation of public lands to the resettlement areas of Cotabato. Since it had the capability-financial and otherwise-to carry out its land accumulation scheme, the lowly settlers, who uprooted their families from their native soil in Luzon to take advantage of the government's resettlement program, but had no sufficient means to fight the big landowners, were the ones prejudiced. Thus, the moral and material suffering of appellant and his family deserves leniency as to his civil liability.

Furthermore, Article 39 of the Revised Penal Code requires a person convicted of prision correccional or arrests mayor and fine who has no property with which to meet his civil liabilities to serve a subsidiary imprisonment at the rate of one (1) day for each P 2.50. However, the amendment introduced by Republic Act No. 5465 on April 21, 1969 made the provisions of Art. 39 applicable to fines only and not to reparation of the damage caused, indemnification of consequential damages and costs of proceedings. Considering that Republic Act 5465 is favorable to the accused who is not a habitual delinquent, it may be given retroactive effect pursuant to Article 22 of the Revised Penal Code.

WHEREFORE, FINDING APPELLANT GUILTY BEYOND REASONABLE DOUBT OF ONLY TWO (2) HOMICIDES, MITIGATED BY THE PRIVILEGED EXTENUATING CIRCUMSTANCE OF INCOMPLETE SELF-DEFENSE AS WELL AS BY TWO (2) GENERIC MITIGATING CIRCUMSTANCES OF VOLUNTARY SURRENDER AND OBFUSCATION, WITHOUT ANY AGGRAVATING CIRCUMSTANCE, APPELLANT IS HEREBY SENTENCED TO SUFFER AN IMPRISONMENT OF FOUR (4) MONTHS OF ARRESTO MAYOR, TO INDEMNIFY EACH GROUP OF HEIRS OF DAVIS FLEISCHER AND OF FLAVIANO RUBIA IN THE SUM OF FOUR THOUSAND (P 4,000.00) PESOS, WITHOUT SUBSIDIARY IMPRISONMENT AND WITHOUT ANY AWARD FOR MORAL DAMAGES AND ATTORNEY'S FEES.

CONSIDERING THAT APPELLANT HAS BEEN UNDER DETENTION FOR ALMOST FOURTEEN (14) YEARS NOW SINCE HIS VOLUNTARY SURRENDER ON AUGUST 22,1968, HIS IMMEDIATE RELEASE IS HEREBY ORDERED. NO COSTS.

SO ORDERED.

Separate Opinions

ABAD SANTOS, J., dissenting:

I dissent. The self-defense of the Revised Penal Code refers to unlawful aggression on persons, not property Plana, J., in the result.

GUTIERREZ, JR., J., dissenting:

While I agree with the order to release the appellant, I am constrained to dissent in part. It is true that Art. 429, Civil Code of the Philippines, provides that the owner or legal possessor of a thing may use such force as may be

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reasonably necessary to repel or prevent an actual or threatened unlawful physical invasion or usurpation of his property. It seems to me, however, that an attack on the person defending his property is an indispensable element where an accused pleads self-defense but what is basically defended is only property.

Defense of property is not of such importance as the right to life and defense of property can only be invoked when it is coupled with some form of attack on the person of one entrusted with said property. The defense of property, whether complete or incomplete, to be available in prosecutions for murder or homicide must be coupled with an attack by the one getting the property on the person defending it.

In the case now before Us, there is absolutely no evidence that an attack was attempted, much less made upon the person of appellant. The mere utterance "No, gademit proceed, go ahead" is not the unlawful aggression which entitles appellant to the pela of self-defense. I agree with the majority opinion that the crime is homicide but without any privileged mitigating circumstance.

Therefore, since the appellant is guilty beyond reasonable doubt of two (2) homicides, mitigated by the two generic mitigating circumstances of voluntary surrender and obfuscation, without any aggravating circumstance, maximum the sentence the appellant should have served was prision mayor plus the indemnification to each group of heirs of Davis Fleischer and of Flamiano Rubia of the sum of Four Thousand (P4,000.00) Pesos, without subsidiary imprisonment, but without any award for moral damages and attorney's fees.

Considering that appellant has been under detention for almost fourteen (14) years now since August 22, 1968, he has served the penalty and should be released.

G.R. No. L-62114 July 5, 1983

ISIDRO BERNARDO and CAYETANO BERNARDO, petitioners, vs.THE PEOPLE OF THE PHILIPPINES, respondent.

RELOVA, J.:

FIRST DIVISION

Petitioner Isidro Bernardo was a tenant of Ledda Sta. Rosa in her riceland in Plaridel, Bulacan from October 1972 to August 1974. At the time, petitioner constructed a house therein for his family's dwelling. His son, co-petitioner Cayetano Bernardo, was staying with him in said house as his helper in tilling the land. Subsequently, Isidro left the landholding and transferred to San Nicolas, Bulacan without the knowledge of the landowner Ledda Sta. Rosa. Before leaving the landholding, however, Isidro transferred his tenancy rights to his son, co-petitioner Cayetano Bernardo, who continued to reside in subject house. Eventually, Ledda

Sta. Rosa took possession of the whole riceland, through her overseer Dr. Patricio E. Cruz.

A case of forcible entry was filed by Ledda Sta. Rosa against herein petitioners, Isidro Bernardo and Cayetano Bernardo, before the Municipal Court of Plaridel, Bulacan. Petitioners lost before the inferior court as well as in the Court of First Instance of Bulacan. Likewise, petitioners lost in their petition for certiorari and mandamus before the Court of Appeals.

Thereafter, Ledda Sta. Rosa sent a letter of demand to petitioners telling them to vacate the house and the land. When the latter failed to leave, a criminal complaint was filed against them for violation of Presidential Decree No. 772 with the fiscal's office. After a preliminary investigation of the case, the provincial fiscal filed the corresponding information with the Court of First Instance of Bulacan, Branch VI, docketed as Criminal Case No. 3022-M, as follows:

That on or about the 22nd day of April 1974, in the municipality of Plaridel, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Isidro Bernardo and Cayetano Bernardo, did then and there willfully, unlawfully and feloniously, without the knowledge and taking advantage of the tolerance of the owner Ledda Sta. Rosa y Cruz, succeed and/or continue in possessing and squatting on a parcel of land of the said owner, by erecting thereon their residential house and failing to remove the said residential house despite demand to do so made by the said owner.

Upon arraignment, herein petitioners, father and son, entered a plea of not guilty. Trial on the merits of the case proceeded and, after both parties have submitted their cases, herein petitioners, through counsel, filed a motion to dismiss on the ground of lack of jurisdiction of the court to entertain a case for violation of Presidential Decree No. 772, inasmuch as the same applies to squatters in urban communities only and not to agricultural lands; that in the case of People vs. Echaves, 95 SCRA 663, it was held that "Presidential Decree No. 772 does not apply to pasture lands because its preamble shows that it was intended to apply to squatting in urban communities or more particularly to illegal construction in squatter areas made by well-to-do individuals."

The motion to dismiss was denied and the trial court rendered judgment convicting herein petitioners of the crime charged and sentencing them to pay a fine of P2,500.00 each, with subsidiary imprisonment in case of insolvency. Hence, this petition for certiorari to set aside the decision of the lower court on the ground that it has no jurisdiction to entertain the criminal case for alleged violation of Presidential Decree No. 772 since the facts obtaining in the case do not constitute an offense or violation of said law.

Indeed, in the case of People vs. Echaves, supra, this Court, speaking through Mr. Justice Ramon C. Aquino, held that Presidential Decree No. 772 does not apply to pasture lands. The preamble of the decree is quoted below:

WHEREAS, it came to my knowledge that despite the issuance of Letter of Instruction No. 19 dated October

12 |Dats


2, 1972, directing the Secretaries of National Defense, Public Works and Communications, Social Welfare and the Director of Public Works, the PHHC General Manager, the Presidential Assistant on Housing and Rehabilitation Agency, Governors, City and Municipal Mayors, and City and District Engineers, 'to remove all illegal constructions including buildings on and along esteros and river banks, those along railroad tracks and those built without permits on public and private property,' squatting is still a major problem in urban communities all over the country;

WHEREAS, many persons or entities found to have been unlawfully occupying public and private lands belong to the affluent class;

WHEREAS, there is a need to further intensify the government's drive against this illegal and nefarious practice.

The intent of the decree is unmistakable. It is intended to apply only to urban communities, particularly to illegal constructions.

The Solicitor General in his comment to the petition manifests that "the intent and purpose of PD 772 is to prohibit and penalize squatting or similar acts on public and private lands located in urban communities. ... ['that no person should be brought within the terms of a penal statute who is not clearly within them, nor should any act be pronounced criminal which is not clearly made so by the statute (US vs. Abad Santos, 36 Phil. 243). ... Consequently, the decision of the lower court in Criminal Case No. 3022- M, convicting herein petitioners of the offense of violation of PD No. 772, is null and void and should, therefore, be set aside."

ACCORDINGLY, this petition for certiorari is GRANTED, the judgment of conviction is SET ASIDE, and said Criminal Case No. 3022-M is hereby DISMISSED.

SO ORDERED.

EN BANC

G.R. No. L-25018 May 26, 1969

ARSENIO PASCUAL, JR., petitioner-appellee,

vs.

BOARD OF MEDICAL EXAMINERS, respondent-appellant, SALVADOR GATBONTON and ENRIQUETA GATBONTON, intervenors-appellants.

FERNANDO, J.:

The broad, all-embracing sweep of the self-incrimination clause, 1 whenever appropriately invoked, has been accorded due recognition by this Court ever since the adoption of the Constitution. 2 Bermudez v. Castillo , 3

decided in 1937, was quite categorical. As we there stated:

"This Court is of the opinion that in order that the constitutional provision under consideration may prove to be a real protection and not a dead letter, it must be given a liberal and broad interpretation favorable to the person invoking it." As phrased by Justice Laurel in his concurring opinion: "The provision, as doubtless it was designed, would be construed with the utmost liberality in favor of the right of the individual intended to be served." 4

Even more relevant, considering the precise point at issue, is the recent case of Cabal v. Kapunan , 5 where it was held that a respondent in an administrative proceeding under the Anti-Graft Law 6 cannot be required to take the witness stand at the instance of the complainant. So it must be in this case, where petitioner was sustained by the lower court in his plea that he could not be compelled to be the first witness of the complainants, he being the party proceeded against in an administrative charge for malpractice. That was a correct decision; we affirm it on appeal.

Arsenio Pascual, Jr., petitioner-appellee, filed on February 1, 1965 with the Court of First Instance of Manila an action for prohibition with prayer for preliminary injunction against the Board of Medical Examiners, now respondent-appellant. It was alleged therein that at the initial hearing of an administrative case 7 for alleged immorality, counsel for complainants announced that he would present as his first witness herein petitioner-appellee, who was the respondent in such malpractice charge. Thereupon, petitioner-appellee, through counsel, made of record his objection, relying on the constitutional right to be exempt from being a witness against himself. Respondent-appellant, the Board of Examiners, took note of such a plea, at the same time stating that at the next scheduled hearing, on February 12, 1965, petitioner-appellee would be called upon to testify as such witness, unless in the meantime he could secure a restraining order from a competent authority.

Petitioner-appellee then alleged that in thus ruling to compel him to take the witness stand, the Board of Examiners was guilty, at the very least, of grave abuse of discretion for failure to respect the constitutional right against self-incrimination, the administrative proceeding against him, which could result in forfeiture or loss of a privilege, being quasi-criminal in character. With his assertion that he was entitled to the relief demanded consisting of perpetually restraining the respondent Board from compelling him to testify as witness for his adversary and his readiness or his willingness to put a bond, he prayed for a writ of preliminary injunction and after a hearing or trial, for a writ of prohibition.

On February 9, 1965, the lower court ordered that a writ of preliminary injunction issue against the respondent Board commanding it to refrain from hearing or further proceeding with such an administrative case, to await the judicial disposition of the matter upon petitioner-appellee posting a bond in the amount of P500.00.

The answer of respondent Board, while admitting the facts stressed that it could call petitioner-appellee to the witness stand and interrogate him, the right against self-incrimination being available only when a question calling

Dats | 13


for an incriminating answer is asked of a witness. It further elaborated the matter in the affirmative defenses interposed, stating that petitioner-appellee's remedy is to object once he is in the witness stand, for respondent "a plain, speedy and adequate remedy in the ordinary course of law," precluding the issuance of the relief sought. Respondent Board, therefore, denied that it acted with grave abuse of discretion.

There was a motion for intervention by Salvador Gatbonton and Enriqueta Gatbonton, the complainants in the administrative case for malpractice against petitioner-appellee, asking that they be allowed to file an answer as intervenors. Such a motion was granted and an answer in intervention was duly filed by them on March 23, 1965 sustaining the power of respondent Board, which for them is limited to compelling the witness to take the stand, to be distinguished, in their opinion, from the power to compel a witness to incriminate himself. They likewise alleged that the right against self-incrimination cannot be availed of in an administrative hearing.

A decision was rendered by the lower court on August 2, 1965, finding the claim of petitioner-appellee to be well-founded and prohibiting respondent Board "from compelling the petitioner to act and testify as a witness for the complainant in said investigation without his consent and against himself." Hence this appeal both by respondent Board and intervenors, the Gatbontons. As noted at the outset, we find for the petitioner-appellee.

1. We affirm the lower court decision on appeal as it does manifest fealty to the principle announced by us in Cabal v. Kapunan 8 In that proceeding for certiorari and prohibition to annul an order of Judge Kapunan, it appeared that an administrative charge for unexplained wealth having been filed against petitioner under the Anti-Graft Act, 9 the complainant requested the investigating committee that petitioner be ordered to take the witness stand, which request was granted. Upon petitioner's refusal to be sworn as such witness, a charge for contempt was filed against him in the sala of respondent Judge. He filed a motion to quash and upon its denial, he initiated this proceeding. We found for the petitioner in accordance with the well-settled principle that "the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand."

It was noted in the opinion penned by the present Chief Justice that while the matter referred to an a administrative charge of unexplained wealth, with the Anti-Graft Act authorizing the forfeiture of whatever property a public officer or employee may acquire, manifestly out proportion to his salary and his other lawful income, there is clearly the imposition of a penalty. The proceeding for forfeiture while administrative in character thus possesses a criminal or penal aspect. The case before us is not dissimilar; petitioner would be similarly disadvantaged. He could suffer not the forfeiture of property but the revocation of his license as a medical practitioner, for some an even greater deprivation.

To the argument that Cabal v. Kapunan could thus distinguished, it suffices to refer to an American Supreme Court opinion highly persuasive in character. 10 In the language of Justice Douglas: "We conclude ... that the Self-Incrimination Clause of the Fifth Amendment has been

absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." We reiterate that such a principle is equally applicable to a proceeding that could possibly result in the loss of the privilege to practice the medical profession.

2. The appeal apparently proceeds on the mistaken assumption by respondent Board and intervenors-appellants that the constitutional guarantee against self-incrimination should be limited to allowing a witness to object to questions the answers to which could lead to a penal liability being subsequently incurred. It is true that one aspect of such a right, to follow the language of another American decision, 11 is the protection against "any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used." If that were all there is then it becomes diluted.

The constitutional guarantee protects as well the right to silence. As far back as 1905, we had occasion to declare: "The accused has a perfect right to remain silent and his silence cannot be used as a presumption of his guilt." 12

Only last year, in Chavez v. Court of Appeals , 13 speaking through Justice Sanchez, we reaffirmed the doctrine anew that it is the right of a defendant "to forego testimony, to remain silent, unless he chooses to take the witness stand — with undiluted, unfettered exercise of his own free genuine will."

Why it should be thus is not difficult to discern. The constitutional guarantee, along with other rights granted an accused, stands for a belief that while crime should not go unpunished and that the truth must be revealed, such desirable objectives should not be accomplished according to means or methods offensive to the high sense of respect accorded the human personality. More and more in line with the democratic creed, the deference accorded an individual even those suspected of the most heinous crimes is given due weight. To quote from Chief Justice Warren, "the constitutional foundation underlying the privilege is the respect a government ... must accord to the dignity and integrity of its citizens." 14

It is likewise of interest to note that while earlier decisions stressed the principle of humanity on which this right is predicated, precluding as it does all resort to force or compulsion, whether physical or mental, current judicial opinion places equal emphasis on its identification with the right to privacy. Thus according to Justice Douglas: "The Fifth Amendment in its Self-Incrimination clause enables the citizen to create a zone of privacy which government may not force to surrender to his detriment." 15 So also with the observation of the late Judge Frank who spoke of "a right to a private enclave where he may lead a private life. That right is the hallmark of our democracy." 16 In the light of the above, it could thus clearly appear that no possible objection could be legitimately raised against the correctness of the decision now on appeal. We hold that in an administrative hearing against a medical practitioner for alleged malpractice, respondent Board of Medical Examiners cannot, consistently with the self-incrimination

14 |Dats


clause, compel the person proceeded against to take the witness stand without his consent.

WHEREFORE, the decision of the lower court of August 2, 1965 is affirmed. Without pronouncement as to costs.

FIRST DIVISION

G.R. No. L-66884 May 28, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.VICENTE TEMBLOR alias "RONALD," defendant-appellant.

GRIÑO-AQUINO, J.:

The accused-appellant Vicente Temblor alias "Ronald" was charged with the crime of murder in Criminal Case No. 1809 of the Court of First Instance (now Regional Trial Court) of Agusan del Norte and Butuan City for shooting to death Julius Cagampang. The information alleged:

That on or about the evening of December 30, 1980 at Talo-ao, Buenavista, Agusan del Norte, Philippines and within the jurisdiction of this Honorable Court, the said accused conspiring, and confederating with one another with Anecito Ellevera who is at large, did then and there wilfully, unlawfully and feloniously, with treachery and with intent to kill, attack, assault and shoot with firearms one Julius Cagampang, hitting the latter on the vital parts of the body thereby inflicting mortal wounds, causing the direct and instantaneous death of the said Julius Cagampang.

CONTRARY TO LAW: Article 248 of the Revised Penal Code.

Upon arraignment on June 8, 1982, he entered a plea of not guilty. After trial, he was convicted and sentenced to suffer the penalty of reclusion perpetua, with the accessory penalties thereof under Articles 41 and 42 of the Revised Penal Code, and to indemnify the heirs of the victim in the amount of P12,000 without subsidiary imprisonment in case of insolvency. He appealed.

The evidence of the prosecution showed that at about 7:30 in the evening of December 30, 1980, while Cagampang, his wife and their two children, were conversing in the store adjacent to their house in Barangay Talo-ao, Buenavista, Province of Agusan del Norte, the accused Vicente Temblor alias Ronald, arrived and asked to buy a half-pack of Hope cigarettes. While Cagampang was opening a pack of cigarettes, there was a sudden burst of gunfire and Cagampang instantly fell on the floor, wounded and bleeding on the head. His wife Victorina, upon seeing that her husband had been shot, shouted her husband's name

"Jul" Two persons, one of whom she later Identified as the accused, barged into the interior of the store through the main door and demanded that she brings out her husband's firearm. "Igawas mo ang iyang armas!" ("You let out his firearm!") they shouted. The accused fired two more shots at the fallen victim. Terrified, Victorina hurried to get the "maleta" (suitcase) where her husband's firearm was hidden. She gave the suitcase to the accused who, after inspecting its contents, took her husband's .38 caliber revolver, and fled.

In 1981, some months after the incident, Victorina was summoned to the Buenavista police station by the Station Commander Milan, where she saw and Identified the accused as the man who killed her husband.

The accused's defense was an alibi. He alleged that from 4:00 o'clock in the afternoon of December 30, 1980, he and his father had been in the house of Silverio Perol in Barangay Camagong, Nasipit, Agusan del Norte, where they spent the night drinking over a slaughtered dog as "pulutan," until 8:00 o'clock in the morning of the following day, December 31, 1980.

The accused and his companion, admittedly members of the dreaded NPA (New People's Army) were not apprehended earlier because they hid in the mountains of Malapong with other members- followers of the New People's Army. Temblor surrendered to Mayor Dick Carmona of Nasipit during the mass surrender of dissidents in August, 1981. He was arrested by the Buenavista Police at the Buenavista public market on November 26, 1981 and detained at the Buenavista municipal jail.

The accused capitalized the fact that the victim's widow, Victorina, did not know him by name. That circumstance allegedly renders the Identification of the accused, as the perpetrator of her husband's killing, insufficient. However, during the trial, the accused was positively identified by the widow who recognized him because she was less than a meter away from him inside the store which was well lighted inside by a 40-watt flourescent lamp and by an incandescent lamp outside. Her testimony was corroborated by another prosecution witness — a tricycle driver, Claudio Sabanal — who was a long-time acquaintance of the accused and who knew him as "Ronald." He saw the accused in the store of Cagampang at about 7:30 o'clock in the evening of December 30, 1980. He heard the gunshots coming from inside the store, and saw the people scampering away.

Dr. Alfredo Salonga who issued the post-mortem examination report certified that the victim sustained three (3) gunshot wounds.

Rebutting the accused's alibi, the prosecution presented a Certification of the Nasipit Lumber Company's Personnel Officer, Jose F. Tinga (Exh. D), and the NALCO Daily Time Record of Silverio Perol (Exh. D), showing that Perol was not at home drinking with the accused and his father, but was at work on December 30, 1980 from 10:50 o'clock in the evening up to 7:00 o'clock in the morning of December 31, 1980. The accused did not bother to overcome this piece of rebuttal evidence.

Dats | 15


In this appeal, the appellant alleges that the court a quo erred:

1. in finding that he was positively identified by the prosecution witness as the killer of the deceased Julius Cagampang; and

2. in rejecting his defense of allbi.

The appeal deserves no merit. Was the accused positively Identified as the killer of Cagampang? The settled rule is that the trial court's assessment of the credibility of witnesses while testifying is generally binding on the appellate court because of its superior advantage in observing their conduct and demeanor and its findings, when supported by convincingly credible evidence as in the case at bar, shall not be disturbed on appeal (People vs. Dava, 149 SCRA, 582).<äre||anº•1àw>

The minor inconsistencies in the testimony of the eyewitness Victorina Vda. de Cagampang did not diminish her credibility, especially because she had positively Identified the accused as her husband's assailant, and her testimony is corroborated by the other witnesses. Her testimony is credible, probable and entirely in accord with human experience.

Appellant's self-serving and uncorroborated alibi cannot prevail over the positive Identification made by the prosecution witnesses who had no base motives to falsely accuse him of the crime. Furthermore, the rule is that in order for an alibi to be acceptable as a defense, it is not enough that the appellant was somewhere else when the crime was committed; it must be demonstrated beyond doubt that it was physically impossible for him to be at the scene of the crime. Here it was admitted that Perol's house in barrio Camagong, Nasipit is accessible to barrio Talo-ao in Buenavista by jeep or tricycle via a well-paved road in a matter of 15 to 20 minutes. The testimony of the witnesses who had positively Identified him could not be overcome by the defendant's alibi. (People vs. Mercado, 97 SCRA 232; People vs. Venancio Ramilo, 146 SCRA 258.)

Appellant's alleged lack of motive for killing Cagampang was rejected by the trial court which opined that the defendant's knowledge that Cagampang possessed a firearm was motive enough to kill him as killings perpetrated by members of the New People's Army for the sole purpose of acquiring more arms and ammunition for their group are prevalent not only in Agusan del Norte but elsewhere in the country. It is known as the NPA's "agaw armas" campaign. Moreover, proof of motive is not essential when the culprit has been positively Identified (People vs. Tan, Jr., 145 SCRA 615).

The records further show that the accused and his companion fled after killing Cagampang and taking his firearm. They hid in the mountains of Agusan del Norte. Their flight was an implied admission of guilt (People vs. Dante Astor, 149 SCRA 325; People vs. Realon, 99 SCRA 422).

WHEREFORE, the judgment appealed from is affirmed in all respects, except as to the civil indemnity payable to the heirs of the Julius Cagampang which is increased to P30,000.00.

SO ORDERED.

G.R. No. L-68969 January 22, 1988

PEOPLE OF THE PHILIPPINES, petitioner, vs.USMAN HASSAN y AYUN, respondent.

SARMIENTO, J.:

This is a pauper's appeal of the decision 1 of the Regional Trial Court of Zamboanga City, Ninth Judicial Region Branch XIII, dated January 25, 1984, which "finds the accused USMAN HASSAN y AYUN guilty beyond reasonable doubt as principal of the Crime of MURDER, and there being neither aggravating nor mitigating circumstance attending the commission of the crime, and pursuant to Paragraph No. 1 of Article 64 of the Revised Penal Code, hereby imposes upon the said accused the penalty of RECLUSION PERPETUA and all its accessory penalties; to indemnify the heirs of the deceased victim Ramon Pichel, Jr. y Uro the amount of P12,000.00 and to pay the costs." 2

Usman Hassan was accused of murder for stabbing to death Ramon Pichel, Jr. y Uro, 24, single, and a resident of Zamboanga City. 3 At the time of his death on July 23,1981, the deceased was employed as manager of the sand and gravel business of his father. On the other hand, Hassan was an illiterate, 15-year-old pushcart cargador. 4

The quality of justice and the majesty of the law shine ever brightest when they are applied with more jealousy to the poor, the marginalized, and the disadvantaged. Usman Hassan, the herein accused-appellant, belongs to this class. At the time of the alleged commission of the crime, he was poor, marginalized, and disadvantaged. He was a flotsam in a sea of violence, following the odyssey of his widowed mother from one poverty-stricken area to another in order to escape the ravages of internicine war and rebellion in Zamboanga del Sur. In the 15 years of Hassan's existence, he and his family had to evacuate to other places for fear of their lives, six times. His existence in this world has not even been officially recorded; his birth has not been registered in the Registry of Births because the Samal tribe, to which he belongs, does not see the importance of registering births and deaths.

Usman was convicted on the bases of the testimony of a lone eyewitness for the prosecution and the sloppiness of the investigation conducted by the police investigator, Police Corporal Rogelio Carpio of the Homicide and Arson

16 |Dats


Section of the Zamboanga City Police Station, who also testified for the prosecution.

We rule that Usman Hassan's guilt was not proved beyond reasonable doubt and that Usman Hassan must, therefore, be set free.

The lone eyewitness for the prosecution is Jose Samson, 24 years old when he testified, married, and a resident of Zamboanga City. On the day of the killing, he was employed at the sand and gravel business of the father of the deceased but was jobless at the time of his examination-in-chief on February 3, 1982.

He testified that he was with Ramon Pichel, Jr. at about 7:00 o'clock in the evening of July 23, 1981; that he was a backrider in the motorcycle of Ramon when they went to buy mangoes at Fruit Paradise near the Barter Trade Zone in Zamboanga City that while he was selecting mangoes, he saw a person stab Ramon who was seated at his red Honda motorcycle which was parked about two or three meters from the fruit stand where he Samson) was selecting mangoes; that he saw the assailant stab Ramon "only once" and that after the stabbing, the assailant ran towards the PNB Building. When asked at the cross-examination if he knew the assailant, Samson said, "I know him by face but I do not know his name." 5

This sole eyewitness recounted the stabbing thus: "While Ramoncito Pichel, Jr. was holding the motorcycle with both of his hands, the assailant come from behind, held his left hand and stabbed him from behind on his chest while the victim was sitting on the motorcycle." He claimed that he was able to see the assailant because it was very bright there that Ramon was facing the light of a petromax lamp, and that all these happened in front of the fruit stand a — distance of about 6 to 7 meters from the side of the road.

Samson described the assailant as wearing a white, short-sleeved t-shirt and maong pants, but "he did not see if the aggressor was wearing shoes," that the assailant stabbed Ramon with a knife but "he did not exactly see what kind of knife it was, and he did not see how long the knife was He said he brought the wounded Ramon to the Zamboanga City General Hospital in a tricycle.

On cross-examination, Samson testified:

xxx xxx xxx

Q When you rushed Ramon Pichel, Jr. to the hospital you came to know that he was already dead, is that correct?

A Yes, sir, I learned that he was already dead.

Q In the hospital, were you investigated by the police?

A They just asked the description of that person as to his attire and his appearance.

Q And it was while in the hospital that you told them the description of the one who stabbed Ramon Pichel, Jr.?

A Yes, Sir.

Q And the body of Ramon Pichel, Jr., was brought to the Funeraria La Merced?

A Yes, sir,

Q Can you recall what time was that?

A I do not know what time was that.

Q And it was all La Merced Funeraria that the police brought to you the accused?

A . . .

Q For Identification?

A Yes, sir.

Q And he was alone when you Identified him?

A Yes he was alone.

Q Aside from working with the Pichel family in their sand and gravel business, do you have any blood relationship with them?

A Yes. sir. 6

(Emphasis supplied)

xxx xxx xxx

What comes as a surprise is that Samson's statement 7 which was taken only on July 25, 1981, two days after the stabbing, and sworn to only on July 27, 1981, also two days after it was taken, or four days after the killing, was never presented or mentioned by the prosecution at all. The information was practically forced out of Police Corporal Rogelio P. Carpio, a witness for the People, during his cross-examination. 8 The sworn statement contained the following questions and answers:

xxx xxx xxx

Q-14. What and please narrate it to me briefly in your own words, the incident you are referring?

A-14. While I was busy selecting some mangoes, I saw unidentified person whom I can recognize by face if seen again embraced my companion Ramon Pitcher Jr. while the latter was aboard his motorcycle parked within the area. That this person without much ado, and armed with a knife suddenly stabbed him (Ramon). That by coincidence to this incident, our eye met each other and immediately thereafter, he fled the area toward the Philippine National Bank (PNB). That this unidentified person was sporting a semi-long hair, dressed in White Polo-Shirt (Short sleeve), maong pants height to more or less 5'5, Dark Complexion. That as this unidentified person fled the area I immediately came to aid my companion, Ramon Pitcher, Jr., and rushed him to Zamboanga General Hospital, on board a Tricycle. That may companion (Ramon) did not whispered (sic) any words to me for he was in serious condition and few minutes later, he expired.

Q-15. Was tills unidentified person was with companion when he attack (sic) Ramon Pitcher Jr.?

A-15. He was alone Sir.

Dats | 17


Q-16. Can you really Identified (sic) this person who attacked and stabbed your companion, Ramon Pitcher, Jr., that evening in question?

A-16. Yes, Sir,

Q-17. Do you still remember that confrontation we made at the Office of La Merced Funeral Homes, wherein you were confronted with one Usman Hassan, whom this Officer brought along?

A-17. Yes, Sir.

Q-18. Was he the very person, who attacked and stabbed your companion, Ramon Pitcher, Jr.?

A-18. Yes, Sir, he was the very person who attacked and stabbed my companion, Ramon Pitcher, Jr., that evening in question.

Q-19. Why?

A-19. Because his face and other physical appearance were fully noted by me and this I cannot forget for the rest of my life.

Q-20. Before this incident, was there any altercation that had ensued while in the process of buying some mangoes in that area?

A-20. None Sir.

Q-21. Were you able to note what kind of knife used by said Usman Hassan in stabbing your companion, Ramon Pitcher Jr.?

A-21: None Sir,

Q-22. Well, I have nothing more to ask of you, do you have anything more to say, add or alter in this statement?

A-22. No more Sir.

Q-23. Are you willing to give a supplemental statement if needed in the future?

A-23. Yes, Sir. 9

(Emphasis supplied)

xxx xxx xxx

The version of the sole eyewitness appearing in his statement 10 is substantially the same as that embodied in the "Case Report," Exhibit it "C", by Police Corporal Carpio, also admitted a s Exhibit "2." This exhibit for the prosecution confirms the sworn statement of witness Samson that an unidentified person, whom he recognized only by face, appeared and without any provocation, the latter embraced the victim and stabbed the same allegedly with a knife." The rest of the Case Report: is also significant in that it confirms the confrontation between the accused and Jose Samson in the funeral parlor arranged by the police Investigator and prosecution witness, Corporal Carpio.

xxx xxx xxx

From this end, a follow-up was made within the premises of the Old Barter Trade, wherein the person of USMAN HASSAN Y AYUN, of Paso Bolong, this City, was arrested in connection with the above stated

incident. That this Officer and companions arrested this person Usman due to his physical appearance, which was fully described by victim's companion. Jose Samson. During his arrest, a knife, measuring to more or less seven (7) inches in blade was confiscated in his possession. The person of Usman Hassan was brought along at the La Merced Funeral Homes for a confrontation with victims companion, Jose Samson and in this confrontation, Jose Samson positively Identified said Usman Hassan as the very person who stabbed the victim.

Usman Hassan, on the other hand, denied the charges levelled against hub and admitted ownership of said knife; claiming among other things that he used said knife for slicing mangoes. 11

xxx xxx xxx

We hold that the evidence for the prosecution in its entirety does not satisfy the quantum of proof — beyond reasonable doubt — required by the Constitution, the law, and applicable jurisprudence to convict an accused person. The said evidence denies us the moral certainty which would allow us to pronounce, without uneasiness of conscience. Usman Hassan y Ayun guilty of the killing of the deceased Ramon Pichel, Jr. y Uro, and condemn him to life imprisonment and in effect turning him into a flotsam again in a sea of convicted felons in which he would be a very young stranger.

In evaluating the worth of the testimony of the lone eyewitness for the prosecution against the denial and alibi of the accused, value judgment must not be separated from the constitutionally guaranteed presumption of innocence.

When the evidence for the prosecution and the evidence for the accused are weighed, the scales must be tipped in favor of the latter. This is because of the constitutional presumtion of innocence the accused enjoys as a counter-foil to the awesome authority of the State that is prosecuting him.

The element of doubt, if reasonable in this case, must operate against the inference of guilt the prosecution would draw from its evidence. That evidence, as it happens, consists only of the uncorroborated statement of the two policemen which, as previously observed, is flawed and therefore suspect. 12

The testimony of Jose Samson, the lone eyewitness, is weak and unconvincing. And so with the evidence sought to be introduced by Police Corporal Carpio. We discover, for example, that the expert testimony of the medico-legal officer of the National Bureau of Investigation, Dr. Valentin Bernalez, presented by the prosecution, contradicted, on material points, the testimony of the one eyewitness, Jose Samson. While Samson averred on the witness stand that he saw the assailant stab the deceased "from behind on his chest" 13 only once, the NBI medico-legal officer Identified two stab wounds, one at the front portion of the chest at the level and third rib, (sic) and another stab wound located at the left arm posterior aspect." 14 The same medical expert also concluded from the nature and location of the chest wound, which was the cause of death, that the same was inflicted on the victim while the alleged accused was in front of him." 15

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The investigation of this case by the Homicide/Arson Section of the Zamboanga Southern Police Sector, 16 at Zamboanga City, particularly by Police Corporal Rogelio P. Carpio, leaves much to be desired. For one, we are not satisfied with the procedure adopted by the police investigators in the Identification of the accused as the assailant. We have no doubt that Usman Hassan was "presented" alone 17 to Jose Samson by the police investigator and prosecution witness, Police Corporal Carpio, and his police companions, at the office of the La Merced Funeral Homes in Zamboanga City. As correctly termed by the very evidence 18 of the prosecution, the procedure adopted by the police investigators was a confrontation" between Jose Samson, Jr. and Usman. Earlier, on direct examination, Corporal Carpio testified that Usman was alone when he was brought to Samson for confrontation in the funeral parlor. However, on cross-examination, Carpio made a turnabout by saying that the accused was Identified by Samson in a "police line-up;" this tergiversation we dare say, was an afterthought, more the result of an over or careless cross-examination, augmented by the leading questions 19 of the trial judge rather than a fastidiousness if not sincerity, on the part of the police investigator, to honestly correct erroneous statements in his examination-in-chief. The fact remains that both Samson and the accused testified clearly and unequivocably that Usman was alone when presented to Samson by Carpio. There was no such police line-up as the police investigator, to honestly correct erreoneous statements in his examination-in-chief. The fact remains that both Samson and the accused testified clearly and unequivocably that Usman was alone when presented to Samson by Carpio. There was no such police investigator claimed on second thought.

The manner by which Jose Samson, Jr. was made to confront and Identify the accused alone at the funeral parlor, without being placed in the police line-up, was "pointedly suggsestive, generated confidence where there was none, activated visual imagination, and, all told, subserted his reliability as eyewitness. This unusual, coarse, and highly singular method of Identification, which revolts against the accepted principles of scientific crime detection, alienates the esteem of every just man, and commands neither our respect nor acceptance." 20

Moreover, the confrontation arranged by the police investigator between the self-proclaimed eyewitness and the accused did violence to the right of the latter to counsel in all stages of the investigation into the commission of a crime especially at its most crucial stage — the Identification of the accused.

As it turned out, the method of Identification became just a confrontation. At that critical and decisive moment, the scales of justice tipped unevenly against the young, poor, and disadvantaged accused. The police procedure adopted in this case in which only the accused was presented to witness Samson, in the funeral parlor, and in the presence of the grieving relatives of the victim, is as tainted as an uncounselled confession and thus falls within the same ambit of the constitutionally entrenched protection. For this infringement alone, the accused-appellant should be acquitted.

Moreover, aside from this slipshod Identification procedure, the rest of the investigation of the crime and the preparation of the evidence for prosecution were done haphazardly, perfunctorily, and superficially. Samson was not investigated thoroughly and immediately after the incident. As previously mentioned, his statement was taken by the investigator only two days after the murder of Ramon Pichel, Jr. and sworn only two days after it had been taken. Similarly, there is nothing in the record to show that the fruit vendor—from whom Samson and the deceased were buying mangoes that fateful evening and who certainly must have witnessed the fatal stabbing—was investigated, or why he was not investigated. Nor is any explanation given as to why the companion 21 of the accused at the time Corporal Carpio arrested him (accused) 'sitting on a pushcart " 22 at about 8:00 P.M. (around 7:00 P.M., according to Usman) of that same evening near the scene of the crime, was not also investigated when he could have been a material witness of the killing or of the innocence of the accused. In addition, the knife and its scabbard, 23 Confiscated by Carpio from Usman (tucked on the right side of his waist") at the time of his arrest, were not even subjected to any testing at all to determine the presence of human blood which could be typed and compared with the blood type of the deceased. A crime laboratory test — had Carpio or the prosecuting fiscal, or even the trial judge, insisted on it — would have revealed whether or not the knife in question (confiscated from the accused by Carpio one hour after the alleged commission of the crime) had indeed been the weapon used to kill Ramon. The police investigator instead nonchalantly dismissed this sin of omission by saying that the knife could have been cleaned or the bloodstain could have been taken away. 24 This presumption of the deadly weapon's having been "cleaned" of bloodstains is tantamount to pronouncing the accused of being guilty.

Our doubt about the guilt of the accused is further deepened by a resolution, 25 in a separate case, 26 of Assistant City Fiscal of Zamboanga City and deputized Tanod bayan Prosecutor Pablo Murillo, which clearly reveals that on July 24, 1981, a day after the killing of Ramon Pichel, Jr., a similar stabbing took place at Plaza Pershing near the place of the earlier incident, with the suspect in that frustrated homicide case being a certain Benhar Isa, 'a notorious and a deadly police character" in Zamboanga City, with a long record of arrests. In that resolution, Fiscal Murillo said the same Benhar Isa was tagged as 'also a suspect in the stabbing of Ramon Pichel, Jr. to death and the stabbing of Pastor Henry Villagracia at the Fruit Paradise, this City." The said resolution further states that "with regards to this incident or witnesses ever testified for fear of possible reprisals." 27

The trial of Usman Hassan began on October 27, 1981. Benhar Isa himself was killed by a policeman on August 28, 1981, while he (Isa) "was apparently under the influence of liquor armed with a knife (was) molesting and extorting money from innocent civilians' and "making trouble." 28 The records of the case at bar do not show any attempt on the part of Corporal Carpio, or any other police officer, to investigate or question Benhar Isa in connection with the killing of Pichel, Jr. Was it fear of the notorious police

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character that made the police officers disregard the possible connection between the slaying of Ramon and that of the person (Harun Acan y Arang of the Ministry of National Defense) 29 who was allegedly stabbed by Benhar Isa a day after the killing of Ramon Jr.? And yet questioning Isa might have provided that vital link to the resolution of Usman's guilt or innocence. But why should the police officers investigate Isa when Usman Hassan was already in custody and could be an available fall guy? Usman Hassan, instead, became a victim of a grave injustice. Indeed, Usman Hassan is too poor to wage a legal fight to prove his innocence. And he is so marginalized as to claim and deserve an honest-to-goodness, thorough, and fair police investigation with all angles and leads pursued to their logical, if not scientific, conclusions. Sadly circumstanced as he is, the authority of the State was too awesome for him to counteract.

The appealed decision made much ado of the admission by Usman "that he was arrested at the former barter trade, which is a place just across the place of the stabbing at the Fruit Paradise." 30 The trial judge found it "therefore strange that on the very evening of the stabbing incident he was still at the barter trade area by 8:00 o'clock in the evening when he usually comes to the city proper at about 6:00 o'clock in the morning and goes home at past 5:00 o'clock and sometimes 6:00 o'clock in the afternoon." 31 Usman's explanation — that, at around 7:00 o'clock P.M., he was waiting for transportation to take him home — was found by the trial court as 'flimsy and weak since he did not explain why he had to go home late that evening." 32 But the whole trouble is nobody asked him. The trial judge did not propound any single question to the accused, and only three to his mother on innocuous matters, by way of clarification, if only to put on record what the mother and son could articulate with clarity. Taking into account their poverty and illiteracy, the mother and son needed as much, if not more, help, than the trial judge extended to the prosecution witnesses during their examination by asking them clarificatory and mostly leading questions. In that sense and to that extent, the accused was disadvantaged.

A fact that looms large, though mutely to testify on the innocence of the accused but the importance of which was brushed away by the trial judge was the presence of the accused near the scene (about 100 to 150 meters away) soon after the stabbing (he testified at around 7:00 P.M. although Police Corporal Carpio stated it was 8:00 P.M.) where he was found sitting on his pushcart with a companion. If he were the assailant, he would have fled. But the trial court instead indulged in conjecture, foisting the probability that the accused 'was lulled by a false sense of security in returning to the place (of the stabbing), when no police officers immediately responded and appeared at the scene of the crime," adding 'there are numerous cases in the past where criminals return to the scene of their crimes, for reasons only psychologist can explain." 33 It must have escaped the trial court's attention that Usman has no criminal record, and, therefore, he could not be generally classed with criminals. In the second place, the trial court's rationalization ignores the biblical truism recognized by human nature and endorsed with approval by this Court that "(T)he wicked flee when no man pursueth but the righteous are as bold as a lion." 34

And now as a penultimate observation, we could not help but note the total absence of motive ascribed to Usman for stabbing Ramon, a complete stranger to him. While, as a general rule, motive is not essential in order to arrive at a conviction, because, after all, motive is a state of mind, 35 procedurally, however, for purposes of complying with the requirement that a judgment of guilty must stem from proof beyond reasonable doubt, the lack of motive on the part of the accused plays a pivotal role towards his acquittal. This is especially true where there is doubt as to the Identity of the culprit 36 as when 'the Identification is extremely tenuous," 37 as in this case.

We can not end this travail without adverting to the cavalier manner in which the trial court disregarded the claimed young age of Usman Hassan.

The defense claims that the accused Usman Hassan is a minor, basing such claim on the testimony of Lahunay Hassan, the mother of said accused, who declared that her son Usman Hassan, who is one of her four (4) children, was born in the year 1967. She testified that she was just told by a person coming from their place about the year of the birth of her son Usman. However on cross-examination, Lahunay Hassan cannot even remember the date or year of birth of her other children. The failure of Lahunay Hassan to remember the date or year of birth of her children is of course understandable, considering that she is unschooled and she belongs to a tribe that does not register births, deaths or marriages, however, it is strange that she only took pains to find out the year of birth of her son Usman. For this reason, the Court granted a motion of the defense on September 13, 1982, to have the herein accused examined by a competent dentist to determine his age. However, the findings of the dentist of Zamboanga General Hospital which is marked as Exhibit "5" shows the following: "age cannot be determined accurately under present mouth conditions. Approximately, he can be from 14 to 21 years of age." This simply means that the herein accused could either be 14 years of age or 21 years of age, or any age in between those aforestated years. From the observation of this court, the accused Usman Hassan was about 18 years of age at the time he committed this crime and this observation is based on his personal appearance, his size and facial features and other personal characteristics, hence he can not be classified as a youthful offender under Article. 189 of Presendential Decree No. 603, as ammended by Presedential Decree No. 1179. In the case of U.S. vs. Mallari, 29 Phil. 13 and People vs. Reyes and Panganiban, CA 48 O.G. 1022, cited in the Edition, Page 680, it was ruled by the Supreme Court that "In cases where the age of the culprit is at issue as a basis for claiming an exempting mitigating circumstance, it is incumbent upon the accused to establish that circumstance ad any other elements of defense. 38

Considering that the age of the accused could exempt him from punishment or cause the suspension of his sentence under Articles 12 and 80, respectively of the Revised Penal Code, if found guilty, more meticulousness and care should have been demanded of medical or scientific sources, and less reliance on the observation of the judge as had

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happened in this case. The preliminary findings of the dentist that the accused could be anywhere between fourteen to twenty one years, despite the difficulty of arriving at an accurate determination due to Hassan's mouth condition, would have placed the trial judge on notice that there is the probability that the accused might be exempted from criminal liability due to his young age. All the foregoing indicates that the accused had not been granted the concern and compassion with which the poor, marginalized, and disadvantaged so critically deserve. It is when judicial and police processes and procedures are thoughtlessly and haphazardly observed that cries of the law and justice being denied the poor are heard. In any event, all this would not be of any moment now, considering the acquittal of the accused herein ordered.

WHEREFORE, the decision is hereby REVERSED, and the accused Usman Hassan y Ayun is ACQUITTED of the crime charged. His release from confinement is hereby Ordered, unless he is held for another legal cause. With costs de oficio.

SO ORDERED.

Yap (Chairman), Paras and Padilla, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

That the testimony of the lone eyewitness is weak and unconvincing.

EN BANC

G.R. No. 5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs. AH CHONG, defendant-appellant.

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

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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

22 |Dats


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"

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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.,

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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

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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.

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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.

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

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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

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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

Dats | 29


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.

30 |Dats


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.

EN BANC

G.R. No. L-25366 March 29, 1968

Dats | 31



vs. JOSE BUAN, accused-appellant.

REYES, J.B.L., Actg. C.J.:

Direct appeal by the accused from an order of the Court of First Instance of Bulacan, in its Criminal Case No. 5243 (for serious physical injuries and damage to property through reckless imprudence), overruling a motion to quash on the ground of double jeopardy.

Stripped to essentials, the case arose in this wise:

The accused was driving a passenger bus of the La Mallorca Company on July 23, 1962, along the MacArthur Highway in the municipality of Guiguinto, Bulacan. Allegedly because of his negligence — and recklessness, the vehicle driven by him struck and collided with the passenger jeep of Sergio Lumidao, damaging said jeep and causing it to turn turtle, and injuring its passengers. Six of the latter suffered slight physical injuries requiring medical attendance for 5 to 9 days: three other riders came out with serious bodily injuries that needed medical attention for 30 to 45 days; while the jeep was damaged to the extent of P1,395.00.

A charge was filed against the accused-appellant, one for slight physical injuries through reckless imprudence, in the Justice of the Peace Court of Guiguinto, for which he was tried and acquitted on December 16, 1963. Prior to this acquittal, however, the Provincial Fiscal of Bulacan filed in the Court of First Instance the information in the case now before us, for serious physical injuries, and damage to property through reckless imprudence. Admittedly, both charges referred to the same highway collision.

When the accused was arraigned in the Court of First Instance, his counsel moved to quash the charges on the ground that he had already been acquitted of the same offense by the Justice of the Peace Court. The prosecution opposed the motion and the Court denied the motion quash. Unable to secure reconsideration, the accused appealed to this Court.

Sole issue before us, therefore, is whether the second case placed the appellant twice in jeopardy for the same offense, and is barred by the previous acquittal.

We agree with the appellant that the Court below erred in not dismissing the information for "serious physical injuries and damage to property through reckless imprudence," in view of the appellant's previous acquittal by the Justice of the Peace Court of Guiguinto, Bulacan, for the same imprudence.

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence)

remains one and the same, and can not be split into different crimes and prosecutions. This has been the constant ruling of the Spanish Supreme Court, and is also that of this Court in its most recent decisions on the matter.

Thus, in People vs. Silva , L-15974, January 30, 1962, where as the result of the same vehicular accident one man died, two persons were seriously injured while another three suffered only slight physical injuries, we ruled that the acquittal on a charge of slight physical injuries through reckless imprudence, was a bar to another prosecution for homicide through reckless imprudence. In People vs. Diaz , L-6518, March 30, 1954, the ruling was that the dismissal by the Municipal Court of a charge of reckless driving barred a second information of damage to property through reckless imprudence based on the same negligent act of the accused. In People vs, Belga , 100 Phil. 996, dismissal of an information for physical injuries through needless imprudence as a result of a collision between two automobiles was declared, to block two other prosecutions, one for damage to property through reckless imprudence and another for multiple physical injuries arising from the same collision. The same doctrine was reasserted in Yap vs. Lutero, et al .,

L-12669, April 30, 1959. In none of the cases cited did the Supreme Court regard as material that the various offenses charged for the same occurrence were triable in Courts of differing category, or that the complainants were not the individuals.

As for the Spanish jurisprudence, Cuello Calon, in his Derecho Penal (12th Ed.), Vol. I, p. 439, has this to say:

Aun cuando de un solo hecho imprudente se originen males diversos, como el hecho culposo es uno solo, existe un solo delito de imprudencia. Esta es jurisprudencia constante del Tribunal Supremo. De acuerdo con esta doctrinael automovilista imprudente que atropella y causa lesiones a dos personas y ademas daños, no respondera de dos delitos de lesiones y uno de daños por imprudencia, sino de un solo delito culposo.

The said author cites in support of the text the following decisions of the Supreme Court of Spain (footnotes 2 and 3).

8 octubre 1887, 18 octubre 1927.

Si con el hecho imprudente se causa la muerte de una persona y ademas se ocasionan daños, existe un solo hecho punible, pues uno solo fue el acto, aun cuando deben apreciarse dos enorden a la responsabilidad civil, 14 diciembre 1931 si a consecuencia de un solo acto imprudente se produjeron tres delitos, dos de homicidio y uno de daños, como todos son consecuencia de un solo acto culposo, no cabe penarlos por separado, 2 abril 1932.

The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless imprudence could not be joined with the accusation for serious physical injuries through reckless imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or less grave felonies. This same argument was considered and rejected by this Court in the case of People vs. Diaz, supra :

32 |Dats


... The prosecution's contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant has been previously cleared by the inferior court.

In view of the foregoing, we must perforce rule that the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.

WHEREFORE, the order appealed from is reversed, and the Court of First Instance of Bulacan is directed to quash and dismiss the charge in its Criminal Case No. 5243. No costs. So ordered.

EN BANC

Adm. Case No. 3086 February 23, 1988

ALEXANDER PADILLA, complainant, vs.THE HON. BALTAZAR R. DIZON, Presiding Judge of the Regional Trial Court of Pasay City Branch 113, respondent.

R E S O L U T I O N

PER CURIAM:

This is an administrative complaint, dated August 6, 1987, filed by the then Commissioner of Customs, Alexander Padilla, against respondent Baltazar R. Dizon, RTC Judge, Branch 115, Pasay City, for rendering a manifestly erroneous decision due, at the very least, to gross incompetence and gross ignorance of the law, in Criminal Case No. 86- 10126-P, entitled "People of the Philippines vs. Lo Chi Fai", acquitting said accused of the offense charged, i.e., smuggling of foreign currency out of the country.

Required by the Court to answer the complaint, the respondent judge filed an Answer, dated October 6, 1987, reciting his "commendable record as a fearless prosecutor" since his appointment as Assistant City Fiscal of Manila on December 4, 1962, until his appointment eventually as RTC Judge on February 18, 1983; that at in the reorganization of the judiciary after the February 26, 1986 revolution, he was reappointed to his present position; that his length of service as prosecutor and judge is "tangible proof that would negate the allegations of the petitioner" (should be

complainant), whereas the latter did not last long in the service for reasons only known to him; that the decision involved in the complaint was promulgated by respondent on September 29, 1986, but the complaint against him was filed only on August 6, 1987, a clear indication of malice and ill-will of the complainant to subject respondent to harassment, humiliation and vindictiveness; that his decision, of which he submits a copy (Annex A) as part of his Answer, is based on "fundamental principles and the foundation of rights and justice" and that if there are mistakes or errors in the questioned decision, they are committed in good faith. Accordingly, respondent prays for the dismissal of the petition (should be complaint).

The issue before the Court is whether or not the respondent judge is guilty of gross incompetence or gross ignorance of the law in rendering the decision in question. A judge can not be held to account or answer, criminally, civilly or administratively, for an erroneous decision rendered by him in good faith.

The case in which the respondent rendered a decision of acquittal involved a tourist, Lo Chi Fai, who was caught by a Customs guard at the Manila International Airport while attempting to smuggle foreign currency and foreign exchange instruments out of the country. Lo Chi Fai, was apprehended by a customs guard and two PAFSECOM officers on July 9, 1986, while on board Flight PR 300 of the Philippine Air Lines bound for Hongkong. At the time of his apprehension, he was found carrying with him foreign currency and foreign exchange instruments (380 pieces) amounting to US$ 355,349.57, in various currency denominations, to wit: Japanese Yen, Swiss Franc, Australian Dollar, Singapore Dollar, HFL Guilder, French Franc, U.S. Dollar, English Pound, Malaysian Dollar, Deutsche Mark, Canadian Dollar and Hongkong Dollar, without any authority as provided by law. At the time the accused was apprehended, he was able to exhibit two currency declarations which he was supposed to have accomplished upon his arrival in Manila in previous trips, namely, CB Currency Declaration No. 05048, dated May 4, 1986 for US$39,600.00 and Japanese Yen 4,000,000.00, and CB Currency Declaration No. 06346, dated June 29, 1986 for Japanese Yen 6,600,000.00.

An information was filed against Lo Chi Fai, with the RTC of Pasay City for violation of Sec. 6, Central Bank Circular No. 960, as follows:

That on or about the 9th day of July, 1986, in the City of Pasay, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Mr. LO CHI FAI, did then and there wilfully, unlawfully and feloniously attempt to take out of the Philippines through the Manila International Airport the following foreign currencies in cash and in checks:

Japanese Yen Y 32,800,000.00

Swiss Franc SW. FR 6,9000.00

Australian Dollar A$ 17,425.00

Dats | 33


Singapore Dollar S$ 9,945.00

Deutsche Marck DM 18,595.00

Canadian Dollar CS 13,330.00

Hongkong Dollar HK$ 15,630.00

HFL Guilder HFL 430.00

French Franc F/6,860.00

US Dollar US$ 73,950.00

English Pound 5,318.00

Malaysian Dollar M$. 14,760.00

(in checks)

Australian Dollar A$ 7,750.00

British Pound 700.00

US Dollar US$ 17,630.00

Canadian Dollar C$ 990.00

without authority from the Central

Bank.

Contrary to Law.

The case, which was docketed as Criminal Case No. 86-10126-P, was subsequently raffled to Branch 113, presided by herein respondent Judge Baltazar A. Dizon.

Section 6 of Circular No. 960 of the Central Bank provides as follows:

Sec. 6. Export, import of foreign exchange; exceptions. — No person shall take out or transmit or attempt to take out or transmit foreign exchange in any form, out of the Philippines directly, through other persons, through the mails or through international carriers except when specifically authorized by the Central Bank or allowed under existing international agreements or Central Bank regulations.

Tourists and non-resident visitors may take out or send out from the Philippine foreign exchange in amounts not exceeding such amounts of foreign exchange brought in by them. For purposes of establishing the amount of foreign exchange brought in or out of the Philippines, tourists and non-resident temporary visitors bringing with them more than US$3,000.00 or its equivalent in other foreign currencies shall declare their foreign exchange in the form prescribed by the Central Bank at points of entries upon arrival in the Philippines.

The penal sanction is provided by Section 1, P.D. No. 1883, which reads as follows:

Section 1. Blackmarketing of Foreign Exchange .— That any person who shall engage in the trading or

purchase and sale of foreign currency in violation of existing laws or rules and regulations of the Central Bank shall be guilty of the crime of blackmarketing of foreign exchange and shall suffer the penalty of reclusion temporal, (minimum of 12 years and I day and maximum of 20 years) and a fine of no less than fifty thousand (P50,000.00) Pesos.

At the trial, the accused tried to establish that he was a businessman from Kowloon, Hongkong, engaged in the garment business, in which he had invested 4 to 5 million Hongkong Dollars; that he had come to the Philippines 9 to 1 0 times, although the only dates he could remember were April 2, 1986, May 4, 1986, June 28,1986, and July 8, 1986; that the reason for his coming to the Philippines was to invest in business in the Philippines and also to play in the casino; that he had a group of business associates who decided to invest in business with him, namely: Wakita Noboyuki, Kobayashi Nabuo, Lee Shiang Pin, Lee Chin and Cze Kai Kwan, who had their own businesses in Japan and Hongkong; that when he came to the Philippines on April 2,1986, he brought US$50,000.00 and 8,500,000.00 Japanese Yen which he tried to declare but the Central Bank representative refused to accept his declaration, until he could get a confirmation as to the source of the money, for which reason he contacted his bank in Hongkong and a telex was sent to him on April 3,1986 (Exh. 4). He also brought in with him US$39,000.00 and 4,000,000.00 Japanese Yen when he arrived on May 4,1986 which he declared (Exh. 1). Again, he declared 8,600,000.00 Japanese Yen when he arrived on June 28, 1986 (Exh. 2). He also testified that his business associates, as per their agreement to invest in some business with him in the Philippines, started putting their money for this purpose in a common fund, hence, every time anyone of them came to the Philippines, they would declare the money they were bringing in, and all declarations were handed to and kept by him; these currency declarations were presented at the trial as exhibits for the defense. When asked by the court why he did not present all of these declarations when he was apprehended at the airport, his answer was that he was not asked to present the declaration papers of his associates, and besides, he does not understand English and he was not told to do so. He also testified on cross-examination that the reason he was going back to Hongkong bringing with him all the money intended to be invested in the Philippines was because of the fear of his group that the "revolution" taking place in Manila might become widespread. It was because of this fear that he was urged by his associates to come to Manila on July 8, 1986 to bring the money out of the Philippines.

The respondent judge, in his decision acquitting the accused, stated:

The factual issue for this Court to determine is whether or not the accused wilfully violated Section 6 of Circular No. 960. The fact that the accused had in his possession the foreign currencies when he was about to depart from the Philippines did not by that act alone make him liable for Violation of Section 6.

What is imperative is the purpose for which the act of bringing foreign currencies out of the country was done the very intention. It is that which qualifies the

34 |Dats


act as criminal or not. There must be that clear intention to violate and benefit from the act done. Intent is a mental state, the existence of which is shown by overt acts of a person.

The respondent proceeded to analyze the evidence which, according to him, tended to show that the accused had no wilfull intention to violate the law. According to the respondent in his decision:

... this Court is persuaded to accept the explanation of the defense that the currencies confiscated and/or seized from the accused belong to him and his business associates abovenamed. And from the unwavering and unequivocal testimonies of Mr. Templo and all of currencies in question came from abroad and not from the local source which is what is being prohibited by the government. Yes, simply reading the provisions of said circular will, readily show that the currency declaration is required for the purpose of establishing the amount of currency being brought by tourist or temporary non-resident visitors into the country. The currency declarations, therefore, is already (sic) intended to serve as a guideline for the Customs authorities to determine the amounts actually brought in by them to correspond to the amounts that could be allowed to be taken out. Indeed, this Court is amazed and really has its misgivings in the manner currency declarations were made as testified to by the Central Bank employees. Why the Bureau of Customs representative never took part in all these declarations testified to by no less than five (5) Central Bank employees? Seemingly, these employees are the favorites of these travellers. It is the hope of this Court that the authorities must do something to remedy the evident flaw in the system for effective implementation of the questioned Central Bank Circular No. 960.

But even with a doubtful mind this Court would not be able to pin criminal responsibility on the accused. This is due to its steadfast adherence and devotion to the rule of law-a factor in restoring the almost lost faith and erosion of confidence of the people in the administration of justice. Courts of Justice are guided only by the rule of evidence.

The respondent-judge has shown gross incompetence or gross ignorance of the law in holding that to convict the accused for violation of Central Bank Circular No. 960, the prosecution must establish that the accused had the criminal intent to violate the law. The respondent ought to know that proof of malice or deliberate intent (mens rea) is not essential in offenses punished by special laws, which are mala prohibita. In requiring proof of malice, the respondent has by his gross ignorance allowed the accused to go scot free. The accused at the time of his apprehension at the Manila International Airport had in his possession the amount of US$355,349.57 in assorted foreign currencies and foreign exchange instruments (380 pieces), without any specific authority from the Central Bank as required by law. At the time of his apprehension, he was able to exhibit only two foreign currency declarations in his possession. These

were old declarations made by him on the occasion of his previous trips to the Philippines.

Although lack of malice or wilfull intent is not a valid defense in a case for violation of Central Bank Circular No. 960, the respondent nonetheless chose to exonerate the accused based on his defense that the foreign currency he was bringing out of the country at the time he was apprehended by the customs authorities were brought into the Philippines by him and his alleged business associates on several previous occasions when they came to the Philippines, supposedly to be used for the purpose of investing in some unspecified or undetermined business ventures; that this money was kept in the Philippines and he precisely came to the Philippines to take the money out as he and his alleged business associates were afraid that the "attempted revolution" which occurred on July 6,1986 might spread. Such fantastic tale, although totally irrelevant to the matter of the criminal liability of the accused under the information, was swallowed by the respondent-judge "hook, line and sinker." It did not matter to the respondent that the foreign currency and foreign currency instruments found in the possession of the accused when he was apprehended at the airport-380 pieces in all-and the amounts of such foreign exchange did not correspond to the foreign currency declarations presented by the accused at the trial. It did not matter to the respondent that the accused by his own story admitted, in effect, that he was a carrier" of foreign currency for other people. The respondent closed his eyes to the fact that the very substantial amounts of foreign exchange found in the possession of the accused at the time of his apprehension consisted of personal checks of other people, as well as cash in various currency denominations (12 kinds of currency in all), which clearly belied the claim of the accused that they were part of the funds which he and his supposed associates had brought in and kept in the Philippines for the purpose of investing in some business ventures. The respondent ignored the fact that most of the CB Currency declarations presented by the defense at the trial were declarations belonging to other people which could not be utilized by the accused to justify his having the foreign exchange in his possession. Although contrary to ordinary human experience and behavior, the respondent judge chose to give credence to the fantastic tale of the accused that he and his alleged business associates had brought in from time to time and accumulated and kept in the Philippines foreign exchange (of very substantial amounts in cash and checks in various foreign currency denominations) for the purpose of investing in business even before they knew and had come to an agreement as to the specific business venture in which they were going to invest. These and other circumstances which make the story concocted by the accused so palpably unbelievable as to render the findings of the respondent judge obviously contrived to favor the acquittal of the accused, thereby clearly negating his claim that he rendered the decision "in good faith." His actuations in this case amount to grave misconduct prejudicial to the interest of sound and fair administration of justice.

He not only acquitted the accused Lo Chi Fai, but directed in his decision the release to the accused of at least the

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amount of US$3,000.00, allowed, according to respondent, under Central Bank Circular No. 960. This, in spite of the fact that forfeiture proceedings had already been instituted by the Bureau of Customs over the currency listed in the information, which according to the respondent should be respected since the Bureau of Customs "has the exclusive jurisdiction in the matter of seizure and forfeiture of the property involved in the alleged infringements of the aforesaid Central Bank Circular." In invoking the provisions of CB Circular No. 960 to justify the release of US$ 3,000.00 to the accused, the respondent judge again displayed gross incompetence and gross ignorance of the law. There is nothing in the said CB Circular which could be taken as authority for the trial court to release the said amount of U.S. Currency to the accused. According to the above-cited CB Circular, tourists may take out or send out from the Philippines foreign exchange in amounts not exceeding such amounts of foreign exchange brought in by them; for the purpose of establishing such amount, tourists or non-resident temporary visitors bringing with them more than US$3,000.00 or its equivalent in other foreign currencies must declare their foreign exchange at points of entries upon arrival in the Philippines. In other words, CB Circular No. 960 merely provides that for the purpose of establishing the amount of foreign currency brought in or out of the Philippines, a tourist upon arrival is required to declare any foreign exchange he is bringing in at the time of his arrival, if the same exceeds the amount of US$3,000.00 or its equivalent in other foreign currencies. There is nothing in said circular that would justify returning to him the amount of at least US$3,000.00, if he is caught attempting to bring out foreign exchange in excess of said amount without specific authority from the Central Bank.

Accordingly, the Court finds the respondent Regional Trial Court Judge, Baltazar R. Dizon, guilty of gross incompetence, gross ignorance of the law and grave and serious misconduct affecting his integrity and efficiency, and consistent with the responsibility of this Court for the just and proper administration of justice and for the attainment of the objective of maintaining the people's faith in the judiciary (People vs. Valenzuela, 135 SCRA 712), it is hereby ordered that the Respondent Judge be DISMISSED from the service. All leave and retirement benefits and privileges to which he may be entitled are hereby forfeited with prejudice to his being reinstated in any branch of government service, including government-owned and/or controlled agencies or corporations.

This resolution is immediately executory.

SO ORDERED.

THIRD DIVISION

G.R. No. L-75390 March 25, 1988

PEOPLE OF THE PHILIPPINES, appellee, vs.DANILO VALDEZ and SINIPLICIO ORODIO alias "Kamlon", appellants.

FELICIANO, J.:

This case is before us on automatic review of the decision of the Regional Trial Court, First Judicial Region, Branch 26, San Fernando, La Union, convicting the accused-appellants Danilo Valdez and Simplicio Orodio of the crime of murder and sentencing each of them to death.

The accused Danilo Valdez and Simplicio Orodio were charged in an information which read as follows:

That on or about the 7th day of June, 1977, in the Municipality of Santol, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually aiding one another, armed with a fire arm, with treachery and evident premeditation and with deliberate intent to kill, did then and there willfully, unlawfully and feloniously, shoot Eleno Maquiling inflicting upon him a gunshot wound which caused the victim's instantaneous death.

That the aggravating circumstance of nighttime was present in the commission of the crime. Contrary to Article 248 of the Revised Penal Code.

After arraignment and trial, the trial court rendered in due course, on 27 June 1986, a decision finding both of the accused guilty of murder. The dispositive portion of the decision states:

WHEREFORE, in view of the foregoing, this Court finds the accused Danilo Valdez and Simplicio Orodio alias 'Kamlon' guilty beyond reasonable doubt of the crime of murder and judgment is hereby rendered imposing upon each of them the Capital penalty of death; to indemnify the heirs of Eleno Maquiling the sum of P30,000.00; to reimburse the expenses in the sum of P3,000.00 to said heirs, and to pay the costs.

The bail bonds posted by the accused for their provisional liberty are hereby cancelled and their immediate arrest ordered.

The accused-appellants argue that the trial court erred in the following respects:

1) That the evidence of the prosecution does not establish the guilt of the accused beyond reasonable doubt; and

2) That the evidence of the prosecution is based simply on suspicion.

We will address these arguments together.

From the record, the facts of the case may be collated as follows:

The house of the Maquiling family stands on the slope of a mountain in Barangay Ambagat, Santol, La Union. At about 8:00 o'clock in the evening of 7 June 1977, the victim Eleno Maquiling, his sisters Leticia and Thelma, his mother Esmenia, and his father Juanito were an in the yard of their house. Esmenia and Juanito were under the awning of their house facing north, engaged in stringing together tobacco leaves. The victim's brother Dionisio was eating his dinner in the wall-less kitchen located on the ground floor of the house. The victim Eleno was seated with his back toward the north and plucking a guitar. The place and its

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surroundings were lighted by a 300 candle power petromax lamp hanging under the northern end of the awning of the house. 1

While the Maquilings were thus seated in their yard, a relative of the family, one Carolina, arrived and asked Esmenia to accompany her to a prayer meeting. Esmenia demurred and instead asked Eleno to accompany Carolina. The victim was then just about two (2) meters away from his parents and about to stand up when suddenly a very loud gun shot rang out from the northern side of the yard and Eleno fell to the ground, crying out to his father for help. Juanita rushed to his fallen son and carried him into their house; Eleno, however, died immediately thereafter.

The victim's mother Esmenia was about to succour Eleno when she instinctively looked toward the direction from whence the gunshot came and saw the two (2) accused, Danilo Valdez and Simplicio Orodio, running down the hill away from the bamboo groves on the northern side of the house. According to Esmenia, the accused Danilo was wearing a blue shirt and dark pants and carrying a long firearm, while the other accused Simplicio was running along side the former. Dionisio Maquiling, brother of the victim, also testified that he too had seen Danilo with a gun and Simplicio both running away in a westernly direction. Danilo stated that he was then about seven (7) meters away from the accused-appellants. 2 Danilo Valdez was a neighbor and a relative of the Maquilings, while Simplicio Orodio was their old accquaintance residing in Sitio Village, Barangay Corooy of the same town; thus, both were well-known to Esmenia and Dionisio Maquiling.

On 8 June 1977, the Municipal Health Officer of Balaoan, Dr. Monico O. Morales, conducted an autopsy which showed that the victim Eleno had sustained eight (8) gunshot (pellet) wounds on his back:

1. Wound, gunshot, ½; inch longest dia., 1 cm. below base of neck, medial, pellet plowed slightly upward and found its exist at the lower 3rd of neck, left, measuring 3/4 inch longest diameter. (Thru and thru).

2. Wound, gunshot, ½ inch longest dia medial, 1 inch lateral to vertebral column, right, pellet plowed upward and found its exit at the base of neck, left, measuring ¾ longest diameter. (Thru and thru).

3. Wound, gunshot, ½ inch longest dia level of 4th intercostal space, back, right, penetrating the chest cavity, pellet was recovered at the upper lobe of right lung.

4. Wound, gunshot, ½ inch longest dia 1 inch above armpit, back, right, pellet plowed slightly upwards and to left. Pellet was not recovered.

5. Wound, gunshot, ½ inch longest dia 8th intercostal space, back, right, 1 inch lateral to the vertebral column, pellet penetrated check cavity hitting lower lobe of lungs, right. Pellet was not recovered.

6. Wound, gunshot ½ inch longest dia medial, back, left, level of 8th intercostal space, hitting the lower lobe, lung, left. Pellet was not recovered.

7. Wound, gunshot. ½ inch longest dia chest, back medial, left, (Level of 9th interspace), penetrating chest cavity hitting lower lobe, lung, left. Pellet was not recovered.

8. Wound, gunshot, ½ inch longest dia postero-lateral, back, I inch below lowest rib of chest, right. Pellet was recovered at the abdominal wall, hypochondic region, front, right. Two (2) pellets were given to Chief of Police, Segundo Tuvera. 3

The morning after the shooting, on 8 June 1977, Sgt. Segundo Tuvera of the Integrated National Police, Santol, La Union, went to the house of the Maquilings to investigate the death of Eleno. 4 He saw a petromax lamp hanging from the awning of the northern end of the house, as well as footprints near the bamboo groves near the northern side of the house. During his investigation, neither Esmenia nor Dionisio informed Sgt. Tuvera of what they had seen.

On 10 June 1977, Juanito Maquiling, the victim's father, executed a sworn statement before the police in the Santol Police Substation. Juanita admitted in his statement that he had not seen the accused-appellants on the night of the shooting. He did relate, however, that three (3) days prior to the shooting of Eleno, Eleno had informed him that in case something untoward happened to him (Eleno), the accused-appellants Danio Valdez and Simplicio Orodio should be held responsible, since he (Eleno) had quarrelled with them concerning their stealing and robbing. 5 Juanita further, stated that the accused Danilo has had a personal grudge against Eleno; Danilo had mortgaged to Eleno's brother a stolen spading fork, a circumstance that Eleno discovered when the real owner of the spading fork came to talk to him. Esmenia, Eleno's mother, gave no sworn statement on that day. Ten (10) days later, on 20 June 1977, however, she made a sworn statement to the Philippine Constabulary in San Fernando, La Union. Shortly thereafter, on 23 June 1977, Dionisio Maquiling, Eleno's brother, gave his own separate sworn statement also to the Philippine Constabulary. Both Esmenia and Dionisio Identified Danilo Orodio as Eleno's killers. 6

At the trial, Esmenia Maquiling was firm and categorical in Identifying the appellants as the men she saw running from the bamboo groves immediately after the shooting —

Q. When you heard that gunshot, what did you do?

A. We immediately rushed to his side and we found him on the ground, sir.

Q. From what direction did you hear the gunshot?

A. North of our yard, sir.

Q. When you went to the succour of your son, what else did you do?

A. When I went, to give succour to my son, I turned and I saw these two, sir,

Q. Where did you see the two accused?

A. North of our yard, sir.

Q. How far were they from you when you saw them?

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A. Witness indicating a distance of more or less five meters.

Q. When you saw the two accused, did you see anything in their possession?

A. They have, sir, (Witness indicating a length of about a foot), and it was Danilo Valdez who was holding that object.

Q. Were you able to recognize that object which Danilo Valdez was then holding?

A. It was a gun, sir.

Q. When you saw Danilo Valdez and Simplicio Orodio north of your yard, what were they doing?

A. I saw Danilo Valdez holding the gun while Simplicio Orodio ran downhill and then Danilo Valdez followed, sir.

Q. You Id that you saw Danilo Valdez and Simplicio Orodio north of your yard. In relation to the place where you heard the gunshot, where were they?

A. Near the bamboo grove which is located north of our house, sir?

Q. In relation to that bamboo grove where you heard the gunshot, where were Danilo Valdez and Simplicio Orodio at the time you saw them?

A. They were east of the bamboo grove, sir.

Q. How far were they from that bamboo grove?

A. Witness referring to a distance of about 6 to 6-½ meters away.

COURT:

Q. How far were you from the accused when you recognized them?

A. Less than a meter away when I recognized them, sir.

FISCAL:

Q. You Id that the distance between you and the two accused at the time you saw them was five meters more or less. Upon questioning of the court, you Id that the distance is less than a meter. Which is true?

A. Witness pointing to a distance of more or less five meters.

Q. How were you able to recognize the two accused at that distance of five meters from you considering that it was nighttime?

A. There was a light from the petromax lamp which was hanging [from] the awning of our house, sir.

Q. That part of the house where this awning is located, is there a wall surrounding the awning?

A. None, sir.

Q. That petromax lamp which you said was hanging under the awning of your house, how high is the petromax light from the ground level?

A. The height is 12 feet, sir.

Q. How big was the petromax light?

A. About two feet, sir. 7

Esmenia's testimony was corroborated by the equally definite testimony of Dionisio Maquiling, who declared that:

Q. Where were you at the time your brother was shot to death?

A. I was in our kitchen eating.

Q. Where was your brother then at the time he was shot in relation to your house?

A. He was west of our kitchen.

Q. In what particular part of your house, inside or outside?

A. Outside of our house.

Q. What time was your brother shot to death?

A. More or less 8 o'clock in the evening.

Q. You said you were in the kitchen of your house eating and you Pointed to Danilo Valdez and Simplicio Orodio alias "Kamlon" as the persons who shot your brother. How were you able to see Simplicio Orodio and Danilo Valdez shoot your brother?

A. I saw them.

Q. Will you relate how were you able to see Danilo Valdez and Simplicio Orodio alias Kamlon shoot your brother Eleno Maquiling?

A. When I was eating facing westward I heard a gunshot and when I looked through the north I saw Danilo Valdez running being followed by Simplicio Orodio.

Q. When you looked northward and you saw Danilo Valdez and Simplicio Orodio running, did you see anything in their possession?

A. A gun. (Witness showing a length of about half a meter).

Q. Who of the two, Danilo Valdez and Simplicio Orodio was hiding the gun?

A. Danilo Valdez. 8

The trial court found the testimony of witnesses Esmenia and Dionisio as positive, credible and reliable. We find no reason to disagree with the finding of the trial court. It is commonplace that "the findings of the trial court as to the credibility of the witnesses are to be given great weight and a high degree of respect by the appellate court". 9 There is nothing in the record to show that the prosecution witnesses were moved by any improper motive to accuse falsely the accused-appellant — one a relative and the other an old acquaintance — of so grave a crime as murder.

The circumstance that Esmenia waited for thirteen (13) days after her son's assassination before reporting the Identities of the accused to the authorities, was not unnatural in itself. She explained the delay by saying that she was afraid to talk about the killing and that she had seen the accused loitering frequently around the

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Maquilings' house, carrying a gun, after the burial of her son. 10 The trial court observed that Esmenia's fear —

was not imaginary because the night that she reported the Identities of the accused their house was stoned by unidentified persons. The delay was satisfactorily explained. In People vs. Martinez, 127 SCRA 260, it was held that delay of witness for several months, because of fear, in reporting the incident to the police does not affect credibility. "Fear of likely retaliation by the several accused who were still at large has been considered as a justified reason for the witnesses' delay in coming forward with their testimony' (People vs. Sampang, 16 SCRA 531; People vs. Equal, 14 SCRA 89). 11

This explanation does not appear incredible in itself and certainly such a delay of thirteen(13)days, under the circumstances of this case, does not warrant a conclusion that her testimony as to the Identities of the killers of her son was false. In People v. Martinez, 12 the Court held that the failure of a witness to reveal immediately the Identities of the accused does not militate against his credibility.

Both Esmenia Maquiling and Dionisio Maquiling did not testify that they had actually seen either Danilo Valdez or Simplicio Orodio shooting at the deceased victim. The principal evidence against the accused is, therefore, circumstantial in character. The trial court recognized this and was careful to analyze the chain of circumstantial evidence on the basis of which the trial court concluded that the two (2) accused had killed Eleno Maquiling:

While the prosecution failed to present an eye witness to the actual shooting by the accused of deceased Eleno, the chain of circumstances, prior and subsequent to the killing, leaves no room for doubt that accused are the guilty persons. The rule is that before conviction upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the accused as the authors of the crime. (People vs. Pamintuan, 127 SCRA 820). In this case, this requisite has been fully met.

Rule 133, Section 5 of the Revised Rules of Court provides:

CIRCUMSTANTIAL EVIDENCE, WHEN SUFFICIENT. — Circumstantial evidence is sufficient for conviction if:

(a) There is more than one circumstances;

(b) The facts from which the inferences are derived are proven; and

(c) The combination of all the circumstances is such as to produce a conviction beyond a reasonable doubt.

Tested by the rule stated above, and considering that Eleno was killed by a shot in the back and suffered eight (8) pellet wounds from one gunshot only; that the accused were immediately seen running down-hill away from the scene after the gunshot report with accused Danilo v. Valdez carrying a long firearm; that

three (3) days before the incident there was already bad blood between the victim and accused Danilo Valdez as the victim confided to his father Juanito Maquiling that if ever he would be shot accused Danilo Valdez is the one to be blamed; 13 that when the place where the clime was committed is an isolated place and it is highly probable that some other malefactors could have been present; and that footprints were seen by the police investigators behind the bamboo grove where the accused were seen to come from immediately after the shooting that Esmenia Maquiling even described the clothing of accused Danilo Valdez; that the two accused are well known to the victim's family thereby precluding the possibility of mistaken Identity; all these proven facts afford sufficient or a reasonable inference that the two accused were indeed the killers of the victim. 14

In his brief, the Solicitor General took the position that accused-appellant Simplicio Orodio should be acquitted for lack of sufficient evidence to sustain this conviction either as a principal or an accomplice. The Solicitor General said:

In the case at bar, the information charged Orodio as having allegedly conspired with Valdez in killing Eleno. The prosecution did not however adduce any evidence establishing the aforesaid alleged conspiracy between Valdez and Orodio to commit the crime charged. The only fact that the prosecution was able to successfully prove was the presence of Orodio at the crime scene when he was seen running together with Valdez by Dionisio and Esmenia after Eleno was gunned down and that he was a barkada of Eleno. It is submitted that in the light of the aforecited ruling in the Madera case, there exist no factual and legal basis to sustain the conviction of Orodio either as a principal or accomplice in this case. 15

We are unable to agree with the Solicitor General, whose view appears to be too drastic a simplification of the evidence that was in fact before the trial court. Orodio was present with Valdez at the time Eleno Maquiling was killed by a shotgun blast at his back. He was in the company of a man running with a shotgun, at approximately 8:00 o'clock in the evening, immediately after the fatal shooting, just outside the Maquilings house where he had no business being if he were not acting in concert with Danilo Valdez, the accused-appellant who carried the shotgun. He was a close friend (barkada) of the accused Danilo Valdez, both of whom the deceased victim had Identified as probably responsible should any untoward event befall the victim. Simplicio Orodio completely failed to explain what he was doing with Danilo Valdez the night of the killing, on the one hand. Upon the other, both Danilo Valdez and Simplicio Orodio pleaded the same alibi. Valdez and Orodio both testified that they were in Cervantes, Ilocos Sur, when Eleno was shot to death. Their common alibi remained uncorroborated for both failed to present either the mother of accused Danilo Valdez who was supposed to have come to Cervantes Ilocos Sur, to inform them that Eleno Maquiling had been shot to death, or any other witness for that matter. The trial court found the accused common defense of alibi as non-credible "as it was not

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impossible for the accused to be present at the scene of the crime. 16

We hold that the prosecution's evidence was more than adequate to sustain the finding of the trial court of a conspiracy between Danilo Valdez and Simplicio Orodio. Conspiracy being present, it does not matter that the prosecution had failed to show who as between the two actually pulled the trigger of the shotgun that killed Eleno Maquiling. 17 Both Danilo Valdez and Simplicio Orodio are liable as co-conspirators since any act of a co- conspirator becomes the act of the other regardless of the precise degree of participation in the act. 18

The trial court correctly appreciated the presence of treachery and evident premeditation. The accused had purposely sought nocturnity and hid themselves behind the bamboo groves located close by the victim's house and had fired at Eleno Maquiling suddenly, without any warning, from behind obviously to ensure the success of their deadly purpose without any risk to themselves and without any possibility of retaliation. Three (3) days before his assassination, Eleno was already apprehensive for his life when he disclosed to his father, Juanito Maquiling, his quarrel with Danilo Valdez and Simplicio Orodio over the latter's thievery and robbery. Clearly, the accused had planned to kill Eleno some days before the fateful night of 7 June 1977; the shotgun blast at the back of Eleno was not the result of a spur of the moment decision.

Since both treachery and evident premeditation were present, and only one (1) qualifying circumstance is necessary to constitute homicide into murder, evident premeditation may be considered as a generic aggravating circumstance. 19 The circumstance of nighttime is, however, absorbed by treachery. 20 A second aggravating circumstance — that the victim who had given no provocation was slain in his dwelling — was also found by the trial court. 21

WHEREFORE, premises considered, the decision of the trial court finding Danilo Valdez and Simplicio Orodio guilty beyond reasonable doubt of the crime of murder is hereby AFFIRMED. In view of the abolition of capital punishment under the 1987 Constitution, and in view of the presence of two (2) aggravating circumstances not offset by any mitigating circumstance, the applicable penalty is reclusion perpetua.

SO ORDERED.

SECOND DIVISION

G.R. Nos. 111294-95 September 7, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.WALTER NACIONAL alias "KA DENNIS," ABSALON MILLAMINA alias "KA ALVIN," EFREN MUSA, RUDY LUCES, JAVIER MIRABETE alias "COMMANDER," and ZACARIAS MILITANTE alias "CARE, " accused.

JAVIER MIRABETE alias "COMMANDER," accused-appellant.

PUNO, J.:

This is an appeal from the decision of the Regional Trial Court, Branch 9, Legazpi City in Criminal Cases Nos. 4854-4855.

On December 18, 1989, Walter Nacional alias "Ka Dennis," Absalon Millamina alias "Ka Alvin," Efren Musa, Rudy Luces, Javier Mirabete alias "Commander, " and Zacarias Militante alias "Care" were charged with murder in two separate informations. The first information reads as follows:

That on or about the 21st day of February 1985 at Brgy. Salvacion, Municipality of Daraga, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court , the above-named accused, with intent to kill, conspiring, confederating and helping one another, with evident premeditation and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously shoot with a firearm one QUIRINO LAGASON, inflicting upon the latter injuries resulting to his death, to the damage and prejudice of his immediate heirs. 1

The second information reads:

That on or about the 21st day of February 1985 at Brgy. Salvacion, Municipality of Daraga, Province of Albay, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, conspiring, confederating and helping one another, with evident premeditation and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously shoot with a firearm one JOEL LAGASON, inflicting upon the latter injuries, resulting to his death, to the damage and prejudice of his immediate heirs. 2

When arraigned, all the accused, except Absalon Millamina who was at large, pleaded "not guilty." The two informations were later consolidated and assigned to the Regional Trial Court, Branch 9, Legazpi City. 3 Trial thereafter ensued.

On May 31, 1993, the trial court rendered a decision finding the accused (except Millamina) guilty of two counts of murder qualified by evident premeditation and attended by a conspiracy. The dispositive portion of the decision reads as follows:

WHEREFORE, having been convinced beyond reasonable doubt of the guilt of the accused, Walter Nacional, Efren Musa, Rudy Luces, Javier Mirabete and Zacarias Militante of the crime of Murder in both of the above-entitled cases, judgment is hereby rendered:

In Criminal Case No. 4854:

1. Sentencing each of the above-mentioned accused to undergo the penalty of Reclusion Perpetua;

2. To indemnify the heirs of the deceased the sum of P50,000.00; and

3. To pay the costs.

In Criminal Case No. 4855:

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1. Sentencing each of the above-named accused to undergo the penalty of Reclusion Perpetua;

2. To indemnify the heirs of the victim the sum of P50,000.00; and

3. To pay the costs. 4

All five (5) accused appealed to this Court. We accepted their appeal in a Resolution dated November 8, 1993. 5

On March 1, 1994, Walter Nacional, Zacarias Militante and Efren Musa, through counsel, moved to withdraw their appeal. They claimed that the charges against them were political in nature "committed while they were members of the New People's Army (NPA). 6 They informed the Court that as political prisoners, they applied for and were recommended by then Secretary of Justice Franklin M. Drilon for conditional pardon by the President of the Philippines. 7 The Court granted their motion on May 11, 1994. 8

On February 1, 1995, Rudy Luces, through counsel, also moved to withdraw his appeal for becoming moot and academic. 9 He claimed that he had been granted conditional pardon by the President of the Philippines and had been released from prison per instruction. In its Comment, the Office of the Solicitor General opined that Rudy Luces abandoned his appeal when he accepted the pardon granted him. We now therefore dismiss his appeal.

With these developments, only accused Javier Mirabete has remained and pursued his appeal to this Court.

The judgment convicting the five accused is based on the evidence presented by the prosecution. It is derived mainly from the testimonies of two eyewitnesses — Bienvenida Lagason, Quirino's widow and Joel's mother, and Crisanto Miranda, a neighbor of the Lagasons — and accused Walter Nacional.

The findings of the trial court as supported by the evidence are summarized as follows:

The six (6) accused, including accused-appellant, were all civilian members of the barangay organization of the Communist Party of the Philippines (CPP) — NPA at Daraga, Albay. 10 A few days before February 21, 1985, their organization had a pulong-pulong (conference) at Barangay Lacag, Daraga for the purpose of identifying suspected informers of the military whom they perceived as posing a threat to the NPA's operations within the vicinity. They identified Quirino and Joel Lagason, both residents of Barangay Salvacion, Daraga as military informants and were targeted for liquidation. Elevino Rincopan, their team leader, however, disapproved the proposal for lack of clearance and approval from the higher NPA authorities. 11

On February 21, 1985, at 4:00 p.m., the six (6) accused and Wilson Lita alias "Ka Cris" were gathered in front of the RCPI building at Lacag, Daraga. Wilson Lita informed them that they were to go on a mission at Salvacion, Daraga to talk to two (2) military informers, Quirino and Joel Lagason. Some members of the group were to confront the two about their being informers and if they "resisted" they were to be killed. 12 The others were instructed to provide maximum security during the confrontation. 13 Wilson Lita

and Absalon Millamina were each armed with a short firearm and the whole group left Lacag at 4:30 p.m. and walked towards Salvacion, four kilometers away. 14

At about 5:00 p.m., the group stopped at the sari-sari store of Genita Miranda and asked Genita for directions to the house of Quirino and Joel Lagason. 15 They continued walking and passed by a waiting shed where they met Crisanto Miranda. They requested Crisanto to accompany them to the Lagason's house. Wilson Lita, Zacarias Militante and accused-appellant remained at the waiting shed and the rest of the group proceeded on their mission. 16

Along the way, the group saw two men walking on the road whom Crisanto identified as Quirino and Joel Lagason. Rudy Luces told Crisanto to leave but the latter did not. Walter Nacional approached Quirino and said something to him. Walter then pulled out a gun from his waist and shot Quirino in the face, hitting him between the eyebrows. Quirino fell to the ground and died instantly. A few seconds later, Absalon Millamina shot Joel Lagason on the head. The group then fled towards the direction of the RCPI Relay Station. Joel's mother, who was at the scene of the crime, rushed him to the hospital where he died a few hours later.

17

The defense set up by the accused consisted of denials. Walter Nacional claimed that Quirino was killed by Wilson Lita alias "Ka Cris" while Joel was allegedly shot by Absalon Millamina. 18 He further averred that he and the other accused merely provided security to Absalon Millamina and Wilson Lita who later on was reportedly killed in an encounter with the military. 19 Rudy Luces, Zacarias Militante, Efren Musa and Javier Mirabete denied being members of the NPA. They denied any participation in the killings. They declared that their presence in the vicinity of the crime was merely incidental. Rudy Luces testified that he merely showed Wilson Lita and Absalon Millamina the way to the Lagasons' house. 20 Zacarias Militante claimed that he gave the two the directions to the RCPI building. 21 Efren Musa alleged that he gave a glass of water to Wilson Lita and Absalon Millamina who were passing by his house.

22 Javier Mirabete testified that he was watching a volleyball game near the scene of the crime when the shooting happened. 23

The trial court rejected the denials of the accused and convicted them.

In this appeal, accused-appellant Javier Mirabete insists on his claim that he was merely watching a volleyball game when the shooting happened. 24 He denies being a member of the NPA or any rebel organization. He likewise denies the existence of a plot and a conspiracy to kill the Lagasons. Accused-appellant claims that he is a mere farmer, already 69 years old and had barely finished Third Grade in school. According to him, his advanced age made it impossible for him join the NPA at the time of the incident. He contends that the testimonies of Bienvenida Lagason and Crisanto Miranda identifying him with the group that killed the Lagasons are unreliable and hearsay because both witnesses never knew him. It was only four years after the shooting that Crisanto Miranda purportedly learned of the members' identities and revealed the same to Bienvenida. 25

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Reviewing the records, we find that accused-appellant was part of the group that conspired to kill and actually killed the Lagasons. The identification of accused-appellant was made not only by Bienvenida Lagason and Crisanto Miranda but by other witnesses as well, including prosecution witnesses Elevino Rincopan, Genita Miranda, and appellant's co-accused Walter Nacional himself.

Elevino Rincopan, a former CPP-NPA team leader at Daraga, Albay identified accused-appellant as one of the civilian members of their barangay organization. Elevino testified that accused-appellant was present at the pulong-pulong before February 21, 1985 where the Lagasons were identified and proposed to be liquidated. 26 The fact that Elevino Rincopan alias "Ka Boy" was the NPA team leader at Daraga, Albay was corroborated by Walter Nacional himself. 27 Walter Nacional likewise identified accused-appellant as present at the meeting on February 21, 1985 at 4:00 p.m. in front of the RCPI building at Lacag, Daraga. It was at this meeting that the group was instructed by Wilson Lita alias "Ka Cris" to seek out the Lagasons and shoot them. 28 Later, Genita Miranda, who was tending her sari-sari store recognized and identified accused-appellant as part of the group that passed by her store and asked her for directions to the victims' house. 29

Accused-appellant was also identified by Crisanto Miranda who testified that he recognized all of the accused when they approached him at the waiting shed. 30 Crisanto explained that he recognized them because they all came from neighboring barangays. 31 In fact, Crisanto was able to clearly identify and distinguish three of the group who remained at the waiting shed and the rest whom he accompanied in their search of the Lagasons. 32 His credibility is not adversely affected by the fact that he did not reveal their identities to the authorities immediately after the shooting. He averred that Efren Musa threatened him to remain silent. For fear of his life, Crisanto fled to Manila. 33 He stayed in almost two years and returned to Daraga, Albay after some time. 34 It was only in 1989 that Crisanto revealed to Bienvenida Lagason the identities of her husband's and son's assailants, and voluntarily gave his statement to the police. 35

Clearly, the evidence proves beyond doubt that accused-appellant was a civilian member of the CPP-NPA at Daraga, and was part of the group of CPP-NPA members that deliberately planned the killing of the Lagasons.

The events that led to the victims' deaths also show that this group of CPP-NPA members deliberately planned, plotted and premeditated their victims' deaths.

Evident premeditation exists when the execution of the criminal act is preceded by cool thought and reflection upon the resolution to carry out the criminal intent. There must be, between the reflection and execution of the crime, a space of time sufficient for the offender to arrive at a calm judgment. 36

Indeed, there was more than sufficient time for the group to reflect on their criminal intentions between the decision to shoot the victims and the actual shooting itself. At the pulong-pulong a few days before February 21, 1995, the Lagasons were identified as military informers and the idea of killing them was openly suggested. On February 21,

1985, all the accused were gathered at one place where the decision to kill the Lagasons was made. The group planned the execution of the crimes, assigned the participation of each member, and armed two of them. The group thereafter deliberately and intentionally searched for the victims and more than an hour later, shot them as planned.

We also hold that the prosecution has clearly and convincingly established the existence of a conspiracy in the planning and execution of the crimes. Conspiracy arises at the very instant the plotters agree, expressly or impliedly to commit the felony and forthwith to actually pursue it. 37

The conspiracy in the instant case was established at the meeting of February 25, 1985 at 4:00 p.m. Apparently, nobody disagreed with the plan to shoot the victims because immediately after the meeting, all the accused and Wilson Lita were seen walking as a group towards Barangay Salvacion. When they saw their intended victims, they shot them and fled towards the RCPI building. Even those left at the waiting shed likewise fled towards the same direction. Clearly, the shooting of the Lagasons was characterized by a unity of purpose, intention and design. 38

It hardly matters that accused-appellant was not actually present at the specific place of the shooting. He was at the waiting shed but this was for the purpose of providing security to those who carried out the shooting. The waiting shed was located along the way to the Lagasons' house, strategically at the entrance to and exit from it. 39

A conspiracy, once established, makes each of the conspirators liable for the acts of the others. 40 All conspirators are liable as co-principals regardless of the extent of their participation because in contemplation of law, the act of one is the act of all. 41

We also agree with the trial court that the aggravating circumstance of abuse of superior strength cannot be appreciated against the appellant. Mere superiority in number does not prove abuse of superior strength. 42

We likewise find no mitigating circumstance in the commission of the crimes. The analogous circumstance of age of over 70 years cannot be considered mitigating because accused-appellant was only 59 years old at the time of the commission of the offense.

Since there is no mitigating nor generic aggravating circumstance, the penalty of reclusion perpetua was correctly imposed by the trial court against the accused-appellant.

Finally, we rule that the grant of conditional pardon and the consequent dismissal of the appeals of Walter Nacional, Zacarias Militante, Efren Musa and Rudy Luces does not exempt them from payment of the civil indemnity. A conditional pardon, when granted, does not extinguish the civil liability arising from the crime. 43 The indemnity of P50,000.00 imposed by the trial court for each of the deaths of Quirino and Joel Lagason must be shared solidarily by all the accused.

IN VIEW WHEREOF, the decision appealed from is hereby AFFIRMED insofar as the criminal liability of accused-appellant Javier Mirabete is concerned, and insofar as the civil liability of all the accused in Criminal Cases Nos. 4854-4855.

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SO ORDERED.

SECOND DIVISION

G.R. No. 79123-25 January 9, 1989

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.EMELIANO TRINIDAD, accused-appellant.

MELENCIO-HERRERA, J.:

On the sole issue that the adduced evidence is insufficient to prove his guilt beyond reasonable doubt of two crimes of Murder and one of Frustrated Murder with which he has been charged, accused Emeliano Trinidad appeals from the judgment of the Regional Trial Court, Branch 7, Bayugan, Agusan del Sur.

From the testimony of the principal witness, Ricardo TAN, the prosecution presents the following factual version:

The deceased victim, Lolito Soriano, was a fish dealer based in Davao City. His helpers were TAN, a driver, and the other deceased victim Marcial LAROA. On 19 January 1983, using a Ford Fiera, they arrived at Butuan City to sell fish. In the morning of 20 January 1983 SORIANO drove the Fiera to Buenavista, Agusan del Norte, together with LAROA and a helper of one Samuel Comendador. TAN was left behind in Butuan City to dispose of the fish left at the Langihan market. He followed SORIANO and LAROA, however, to Buenavista later in the morning.

While at Buenavista, accused Emeliano TRINIDAD, a member of the Integrated National Police, assigned at Nasipit Police Station, and residing at Baan, Butuan City, asked for a ride to Bayugan, Agusan del Sur, which is on the way to Davao City. TRINIDAD was in uniform and had two firearms, a carbine, and the other, a side-arm .38 caliber revolver. SORIANO, LAROA, TAN, and TRINIDAD then left Butuan on 20 January 1983 at about 5:20 P.M. bound for Davao City. TAN was driving the Fiera. Seated to his right was SORIANO, LAROA and the accused TRINIDAD, in that order. When they reached the stretch between El Rio and Afga, TRINIDAD advised them to drive slowly because, according to him, the place was dangerous. All of a sudden, TAN heard two gunshots. SORIANO and LAROA slumped dead. TAN did not actually see the shooting of LAROA but he witnessed the shooting of SORIANO having been alerted by the sound of the first gunfire. Both were hit on the head. TRINIDAD had used his carbine in killing the two victims.

TAN then hurriedly got off the Fiera, ran towards the direction of Butuan City and hid himself in the bushes. The Fiera was still running slowly then but after about seven (7) to ten (10) meters it came to a halt after hitting the muddy side of the road. TAN heard a shot emanating from the Fiera while he was hiding in the bushes.

After about twenty (20) to thirty (30) minutes, when a passenger jeep passed by, TAN hailed it and rode on the front seat. After a short interval of time, he noticed that TRINIDAD was seated at the back. Apparently noticing TAN as well, TRINIDAD ordered him to get out and to approach him (TRINIDAD) but, instead, TAN moved backward and ran

around the jeep followed by TRINIDAD. When the jeep started to drive away, TAN clung to its side. TRINIDAD fired two shots, one of which hit TAN on his right thigh. As another passenger jeep passed by, TAN jumped from the first jeep and ran to the second. However, the passengers in the latter jeep told him to get out not wanting to get involved in the affray. Pushed out, TAN crawled until a member of the P.C. chanced upon him and helped him board a bus for Butuan City.

TRINIDAD's defense revolved around denial and alibi. He contended that he was in Cagayan de Oro City on the date of the incident, 20 January 1983. At that time, he was assigned as a policeman at Nasipit Police Station, Agusan del Norte. He reported to his post on 19 January 1983 but asked permission from his Station Commander to be relieved from work the next day, 20 January, as it was his birthday. He left Baan, his Butuan City residence, at about 3:00 P.M. on 20 January 1983 and took a bus bound for Cagayan de Oro City. He arrived at Cagayan de Oro at around 8:00 P.M. and proceeded to his sister's house at Camp Alagar to get his subsistence allowance, as his sister was working thereat in the Finance Section.

At his sister's house he saw Sgt. Caalim, Mrs. Andoy, one Paelmo, in addition to his sister. Sgt. Caalim corroborated having seen TRINIDAD then.

Continuing, TRINIDAD claimed that he left Cagayan de Oro for Butuan at lunch time on 21 January 1983 arriving at the latter place around 6:00 P.M., and went to his house directly to get his service carbine. He was on his way to Nasipit to report for duty on 21 January 1983 when he was arrested at around 6:00 P.M. at Buenavista, Agusan del Norte.

After joint trial on the merits and unimpressed by the defense by the Trial Court** sentenced the accused in an "Omnibus Decision", thus:

WHEREFORE PREMISES CONSIDERED, this Court finds Emeliano Trinidad GUILTY beyond reasonable doubt of the crimes of Murder and Frustrated Murder.

In the Frustrated Murder, there being no mitigating circumstance, and taking into account the provisions of the Indeterminate Sentence Law, accused Trinidad is meted out a penalty of:

1) 8 years and 1 day to 12 years of prision mayor medium;

2) to indemnify the complainant the amount of P 5,000.00; and

3) to pay the costs.

Likewise, in the two murder cases, Trinidad is accordingly sentenced:

1) to a penalty of Reclusion Perpetua in each case;

2) to indemnify the heirs of Marcial Laroa and Lolito Soriano the amount of P30,000.00 each; and

3) to pay the cost. (p. 14, RTC Decision, p. 28, Rollo).

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Before us now, TRINIDAD claims that the Trial Court erred in giving full faith and credit to TAN's testimony who, TRINIDAD alleges, was an unreliable witness. That is not so.

We find no variance in the statement made by TAN before the NAPOLCOM Hearing Officer that when TRINIDAD boarded the Fiera in Buenavista, he (TAN) was not in the vehicle, and that made in open Court when he said that he was with TRINIDAD going to Butuan City on board the Fiera. For the facts disclose that when TRINIDAD boarded the Fiera in Buenavista, TAN was still in Langihan distributing fish. The Fiera left for Buenavista, driven by SORIANO between 6:00 to 7:00 A.M., while TAN followed only at 11:00, A.M. in another vehicle. So that when TRINIDAD boarded the Fiera in Buenavista, TAN was not yet in that vehicle although on the return trip from Butuan City to Davao City, TAN was already on board. In fact, TAN was the one driving. TAN's testimony clarifying this point reads:

Q Did you not say in your direct examination that you went to Buenavista, Agusan del Norte?

A We were in Langihan and since our fishes were not consumed there, we went to Buenavista.

Q Now, what time did you leave for Buenavista from Langihan?

A It was more or less at 6:00 to 7:00 o'clock.

Q You were riding the fish car which you said?

A I was not able to take the fish car in going to Buenavista because they left me fishes to be dispatched yet.

Q In other words, you did not go to Buenavista on January 20, 1983?

A I was able to go to Buenavista after the fishes were consumed.

Q What time did you go to Buenavista?

A It was more or less from 11:00 o'clock noon.

Q What transportation did you take?

A I just took a ride with another fish car because they were also going to dispatch fishes in Buenavista.

Q Now, who then went to Buenavista with the fish car at about 7:00 o'clock in the morning of January 20, 1983?

A Lolito Soriano and Marcia Laroa with his helper.

x x x x x x

Q Now, when this fish car returned to Butuan City who drove it?

A Lolito Soriano.

Q Were you with the fish car in going back to Langihan?

A Yes, sir. (T.S.N., December 6, 1985, pp. 53-54).

Felimon Comendador, also a fish vendor, and a resident of Butuan City, testified that he saw TRINIDAD riding in the Fiera on the front seat in the company of TAN, SORIANO

and LAROA, when the Fiera stopped by his house at Butuan City (TSN, November 5, 1985, pp. 32-33).

The other inconsistencies TRINIDAD makes much of, such as, that TAN was unsure before the NAPOLCOM Hearing Officer whether TRINIDAD was wearing khaki or fatigue uniform but, in open Court, he testified positively that TRINIDAD was in khaki uniform; and that while TAN declared that TRINIDAD was wearing a cap, prosecution witness Felimon Comendador said that he was not but was in complete fatigue uniform, are actually trivial details that do not affect the positive identification of TRINIDAD that TAN has made nor detract from the latter's overall credibility.

Nor is there basis for TRINIDAD to contend that the absence of gunpowder burns on the deceased victims negates TAN's claim that they were shot "point-blank." Actually, this term refers merely to the "aim directed straight toward a target" (Webster's Third New International Dictionary) and has no reference to the distance between the gun and the target. And in point of fact, it matters not how far the assailant was at the time he shot the victims, the crucial factor being whether he did shoot the victim or not.

TRINIDAD's defense of alibi is inherently weak and cannot prevail over the straightforward and detailed descriptive narration of TAN, thus:

Q Now, from Butuan City, where did you proceed?

A We proceeded to Davao.

Q Did you in fact reach Davao on that date?

A No, sir.

Q Could you tell the Court why you failed to reach Davao?

A Because we were held-up.

Q Who held-up you?

A Emeliano Trinidad, sir.

Q Are you referring to accused Emeliano Trinidad whom you pointed to the court awhile ago?

A Yes, sir.

Q Will you tell the Court how did Emeliano Trinidad holdup you?

A When we reach between El Rio and Afga, Trinidad advised us to run slowly because this place is dangerous. Then suddenly there were two gun bursts.

Q Now, you heard two gun bursts. What happened? What did you see if there was any?

A I have found out that Lolito Soriano and Marcial Laroa already fall.

Q Fall dead?

A They were dead because they were hit at the head.

Q You mean to inform the Court that these two died because of that gun shot bursts?

A Yes, sir.

Q Did you actually see Trinidad shooting the two?

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A I did not see that it was really Trinidad who shot Laroa but since I was already alerted by the first burst, I have seen that it was Trinidad who shot Soriano.

Q What was the firearm used?

A Carbine, sir.

x x x x x x

Q Now, after you saw that the two fell dead, what did you do?

A I got out from the Ford Fiera while it was running.

x x x x x x

Q From the place where you were because you said you ran, what transpired next?

A I hid myself at the side of the jeep, at the bushes.

Q While hiding yourself at the bushes, what transpired?

A I heard one gun burst.

Q From what direction was that gun bursts you heard?

A From the Ford Fiera, sir.

Q After that, what happened?

A At around 20 to 30 minutes, I moved out from the place where I hid myself because I wanted to go back to Butuan, Then, I boarded the jeep and sat at the front seat but I found out that Emeliano Trinidad was at the back seat.

Q When you found out that Trinidad was at the back, what happened?

A He ordered me to get out.

Q Now, when you got down, what happened?

A When I got out from the jeep, Trinidad also got out.

Q Tell the Court, what happened after you and Trinidad got out from the jeep?

A He called me because he wanted me to get near him.

Q What did you do?

A I moved backward.

'Q Now, what did Trinidad do?

A He followed me.

Q While Trinidad followed you, what happened?

A I ran away around the jeep.

Q Now, while you were running around the jeep, what happened?

A The driver drove the jeep.

Q Now, after that, what did you do?

A I ran after the jeep and then I was able to take the jeep at the side of it.

Q How about Trinidad, where was he at that time?

A He also ran, sir.

Q Now, when Trinidad ran after you what happened?

A Trinidad was able to catchup with the jeep and fired his gun.

Q Were you hit?

A At that time I did not know that I was hit because it was sudden.

Q When for the first time did you notice that you were hit?

A At the second jeep.

Q You mean to inform the Court that the jeep you first rode is not the very same jeep that you took for the second time?

A No, sir.

Q Now, when you have notice that you were hit, what did you do?

A At the first jeep that I took I was hit, so I got out from it and stood-up at the middle of the road so that I can catch up the other jeep.' (TSN, December 6, 1985, pp. 44-49)

TAN's testimony remained unshaken even during cross- examination. No ill motive has been attributed to him to prevaricate the truth. He was in the vehicle where the killing transpired was a witness to the actual happening, and was a victim himself who managed narrowly to escape death despite the weaponry with which TRINIDAD was equipped.

The defense is correct, however, in contending that in the Frustrated Murder case, TRINIDAD can only be convicted of Attempted Murder. TRINIDAD had commenced the commission of the felony directly by overt acts but was unable to perform all the acts of execution which would have produced it by reason of causes other than his spontaneous desistance, such as, that the jeep to which TAN was clinging was in motion, and there was a spare tire which shielded the other parts of his body. Moreover, the wound on his thigh was not fatal and the doctrinal rule is that where the wound inflicted on the victim is not sufficient to cause his death, the crime is only Attempted Murder, the accused not having performed all the acts of execution that would have brought about death (People vs. Phones, L-32754-5, July 21, 1978, 84 SCRA 167; People vs. Garcia, L-40106, March 13, 1980, 96 SCRA 497).

But while the circumstances do spell out the two crimes of Murder, the penalty will have to be modified. For, with the abolition of capital punishment in the 1987 Constitution, the penalty for Murder is now reclusion temporal in its maximum period to reclusion perpetua (People vs. Lopez, et al. G.R. No. 71876-76, January 25, 1988 citing People vs. Gavarra, No. L-37673, October 30, 1987; People vs. Masangkay, G.R. No. 73461, October 27, 1987). With no attending mitigating or aggravating circumstance, said penalty is imposable in its medium period or from eighteen (18) years, eight (8) months and one (1) day to twenty (20)

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years. The penalty next lower in degree for purposes of the Indeterminate Sentence Law is prision mayor, maximum, to reclusion temporal, medium, or from ten (10) years and one (1) day to seventeen (17) years and four (4) months (Article 61, parag. 3, Revised Penal Code).

WHEREFORE, the guilt of the accused Emeliano Trinidad for the crimes of Murder (on two counts) and Attempted Murder, having been proven beyond reasonable doubt, his conviction is hereby AFFIRMED and he is hereby sentenced as follows:

1) In each of Criminal Cases Nos. 79123-24 (Nos. 96 and 99 below) for Murder, he shall suffer the indeterminate penalty of ten (10) years and one (1) day of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal, as maximum; to indemnify the heirs of Marcial Laroa and Lolito Soriano, respectively, in the amount of P30,000.00 each; and to pay the costs.

2) In Criminal Case No. 79125 (No. 100 below) for Frustrated Murder, he is hereby found guilty only of Attempted Murder and sentenced to an indeterminate penalty of six (6) months and one (1) day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum; to indemnify Ricardo Tan in the sum of P5,000,00; and to pay the costs.

SO ORDERED.

SECOND DIVISION

G.R. No. L-31922 October 29, 1976


vs. RICARDO VELASCO Y ABENOJAR, defendant-appellant.

FERNANDO, J.:

This Court has not been hesitant in the choice of words appropriate for expressing its disapproval of the act of utilizing force to compel a woman to submit to a man's lust. So it should be, but never was the condemnation more vehement than when the victim was a young and helpless child of tender years, in which case the law has wisely seen to it that the mere fact of her being below the statutory age suffices to affix the stamp of criminality on the deed. 1 For her, it would be a traumatic experience likely to cast a blight on the years that lie ahead. Equally so for the parents, it brings untold grief and suffering. As the offended party in this case was only five years of age. when the offense of rape for which the accused was indicted and convicted took place, the only question before this Court on appeal is whether there was proof sufficient to establish his guilt beyond reasonable doubt. Precisely because of the sense of pity and sympathy aroused by the misfortune that befell the poor child, this Court scrutinized the records much more carefully. The conclusion reached is that the appealed decision is in conformity with law and that the appellant should be made to expiate for his crime by serving the sentence of reclusion perpetua.

It is a little unusual to notice that counsel for the appellant explicitly stated that he was "quoting the pertinent narration of facts of the trial court in its decision of February 18, 1970, to be [his] statement of facts." 2 Earlier, though, he did assert: "At most, on the basis of the testimonies of the prosecution witnesses, subjected to the above tests, the fact of the commission of the crime might have been proven, but certainly, we submit not the commission of the crime by the accused." 3 The fact as noted by the trial judge, the Honorable Gregorio T. Lantin, now retired, follow: "It appears that at about 5:30 in the afternoon of the 2nd day of November, 1967, the offended party, Estelita Lopez, a child, five years old, accompanied by her cousin Nenita Lopez, another child, four years old, were at the North Cemetery, Manila. The defendant, Ricardo Velasco y Abenojar, called them, gave Nenita a five-centavo coin and asked her to buy cigarettes for him. After she left, the accused held Estelita by the hand and brought her to an alley. Once in a hidden place between the tombs he kissed her on the lips, took off her panties and placed himself on top of the girl while she was lying down on the ground face up and tried to insert his sexual organ into that of the victim. The girl shouted in pain, 'Aray, Aray.' Arsenio Perez, who happened to see the accused holding the hand of the girl while walking along 24th .street in the cemetery as as when they turned into the alley and who at first thought that the accused was a relative of the girl, upon hearing the shouts of the girl and because of the shouts believed that something bad was being done to the girl, ... proceeded to the place where the shouts came and upon standing on top of one of the tombs he saw, a short distance away, (2 tombs away) the accused on top of the girl, with his pants and drawers lowered down to his knees, and the dress of the girl raised up and the buttocks of the accused making upward and downward movements. He tried to seek for help and upon seeing Jose Castro on the 24th Street told him, "Mang Pepe, Mang Pepe, the daughter of Mang Pidiong is being raped" ( Ginahasa ang anak ni Mang Pidiong ). Castro proceeded to the place pointed by Perez with the latter following him, and while standing on top of a tomb a short distance away (about 5 tombs away), Castro saw the defendant on top of the girl. The accused then stood up and raised his pants while the girl rose from the ground crying. Castro approached the defendant and the girl and asked him what happened, and he said the girl lost her way and was crying. The girl was bleeding at the time and he noticed that she even wiped off with her dress the blood on the front part of her thighs. He held the girl by the hand and led her to 24th street and then called the accused. Once there in the street, Castro suddenly twisted one of his arms. Several people came and gave the defendant fist blows while Castro was taking him to the office of the North Cemetery and Pedro Zapata was holding the girl and leading her to the same office. A mobile patrol car arrived and the defendant and the girl were taken in the car to the Reyes Memorial Hospital, Patrolman Matulac of the mobile patrol indorsed the case to Precinct 2 operatives and one of those who responded and took over the case was Det. Corporal Jesus P. Senen. The injuries of the defendant were treated in the hospital. While in the hospital and seated on a wheelchair, the offended party pointed to him ... Detective Corporal Senen testified that the defendant verbally admitted to him while in the hospital that he raped the girl, but that the defendant

46 |Dats


appeared to be drunk at the time. After treatment, he was taken by the Precinct 2 operatives to the precinct where the statements of Estelita and Jose Castro were taken, ... as well as the statement of Arsenio Perez which was utilized by the defense on cross-examination of the said witness but did not offer it as exhibit. The defendant again admitted verbally to Senen in Precinct 2 that he raped the girl but refused to give a written statement. A Medico Legal examination was conducted in the Medical Examiner's office by Dr. David S. Cabreira at out 8:10 P.M. of November 2, 1967 ..., and according to the said report the findings were, '(1) Fresh laceration of the hymen at six o'clock positions (2) Vaginal opening is painful and sensitive to touch. Opinion: From the above findings on the subject Estelita Lopez, the undersigned finds that she must have had sexual intercourse recently before this examination.' " 4

Retired Judge Lantin then considered the evidence for the defense. Thus: "In exculpation, the accused tried to establish that in the afternoon of November 2, 1967, upon instruction of his mother, he went to the North Cemetery to visit the grave of his deceased brother Pablo Velasco. Having been in the same cemetery the whole day of the 1st, selling pansit, gulaman and other foodstuffs together with his parents, sister and wife and was able to go home only at two o'clock in the early morning of November 2, 1967, he felt tired and rested on a cement bench near one of the tombs smoking a cigarette. It was in this situation that Estelita approached him crying. He asked her twice why she was crying, to which no answer was given. He then held her right shoulder and it was while doing so that all of a sudden four men appeared and without any question asked, one of them boxed him on the head above the left ear, while the others participated in boxing him. He was pulled towards the street where more people came and did the same thing to him. He was held by both hands and taken to the office of the cemetery. He fell down to the ground because so many people were giving him fist blows. He was brought to the hospital with his eyes closed because they were painful, having been hit on several parts of his face. When he opened his eyes he was already in the Reyes Memorial Hospital. He, however, could not Identify any one of those who mauled him. When asked by the doctor in the hospital what happened, he just said he did not know anything. No policeman questioned him in the hospital and it was only when he was brought to Precinct 2 that he was asked questions, but he told the police investigator that he did not know anything about that which had happened to the child." 5

After considering the evidence both for the prosecution and the defense, the then Judge Lantin was quite categorical as to the culpability of the accused: "There is no question that rape was the crime committed, but because of the tender age of the child, she was only five years and six months at the time, penetration was impossible due to the infatile character of the vagina, and, therefore, the crime could only be frustrated rape (People v. Eriñia, 50 Phil. 998). In the case of Eriñia however, unlike the present case, the hymen of the victim, who was three years and 11 months old, was not lacerated. Besides, the Supreme Court gave the accused Eriñia the benefit of the doubt because there was no conclusive evidence of penetration of the genital

organ of the offended party, referring to the labia and not the vagina. In the present case, however, considering the anatomical position of the labia majora and minora that these two external parts of the female sexual organ cover the hymen and the vaginal opening and, therefore, in order to rupture the hymen and produce the medico-legal finding that the 'vaginal opening was painful and sensitive to touch,' the conclusion is inevitable that the sexual organ of the accused must have entered and had passed the labia majora and the labia minora. And pursuant to the case of People v. Oscar , 48 Phil. 527, and People v. Hernandez, 49 Phil. 980, and the dissenting opinion in the case of People v. Eriñia ( supra ), the crime committed by the accused Ricardo Velasco y Abenojar was consummated rape." 6

From the above excerpts of the appealed decision, it is readily discernible that Judge Lantin was true to the tenets of his calling. He was most judicious in his appraisal of the evidence. The fair-mindedness is quite apparent. The language employed is most sober. On a matter that could have aroused the deepest antipathy, considering what was testified to, he preserved, as befits a man on the bench, calmness and objectivity. Counsel for appellant did try hard to create doubts about the guilt of the accused, but it was an effort doomed to futility. The medical examination revealed that the offended party was indeed raped. She was examined on the very night she was violated. The findings showed "fresh laceration on the hymen at six o'clock position," with "the vaginal opening painful and sensitive to touch." 7 Dr. Cabreira, then sixty-three years of age at the time he testified, after twenty-three years in the service, with more than one thousand medico-legal cases of rape, seduction, and abduction, 8 could affirm: "From the above findings on the subject ..., the undersigned opines that she could have had sexual intercourse recently before this examination." The fact is undisputed that on the very afternoon of November 2, 1967, it was the accused, who, after giving the cousin of the victim a five-centavo coin to buy cigarettes for him, led the latter to an alley, kissed her on the lips, divested her of her intimate garments, and placed himself on top of her. It could be, as contended by defense counsel, that the actual act of intercourse was not fully seen by the two eyewitnesses to the occurrence. It is, however, equally undisputed that the cries from the horrified onlookers resulted in the accused being mauled by third parties, who could not repress their sense of indignation and outrage, no doubt heightened by the sight of the young girl bleeding as a result of what was done to her. Fortunately, there was a mobile patrol car available. She, as well as the accused, were taken to the Reyes Memorial Hospital. In the police investigation conducted the same evening, he was Identified as the author of the offense by the young girl. The above facts, the records clearly disclose. They have been demonstrated beyond doubt. That is why, as set forth at the outset, the decision calls for affirmance.

1. The first assignment of error criticized the "evaluation of the facts" by the trial judge allegedly for ignoring inconsistencies in the testimony of the witnesses for the prosecution as well as in giving credence to what was testified to by the offended party. Defense counsel would thus have this Court disregard what had been referred to

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above as a most painstaking and careful study of the evidence of record by Judge Lantin. The impact of a principle reiterated time and time again apparently was not felt by counsel. A reminder from People v. Baylon 9 is in order. Thus: "In essence, appellant, by the defenses interposed, would have us ignore the well-settled doctrine that the determination by the trial judge who could weigh and appraise the testimony as to the facts duly proven is entitled to the highest respect, absent a showing that he ignored or disregarded circumstances of weight or influence sufficient to call for a different conclusion. There was a reiteration of that doctrine in the recent case of People v. Carandang , reference being made to an early formulation thereof in People v. De Otero, where Justice Malcolm, speaking for the Court stated: 'After everything is said and done, we come back, as we invariably do in cases of this nature, to a recognition of the rule that the Supreme Court will not interfere with the judgment of the trial court in passing on the credibility of the opposing witnesses, unless there appears in the record some fact or circumstances of weight and influence, which has been overlooked or the significance of which has been misinterpreted.' " 10 Again, in a prosecution for rape, People v. Ordonio, 11 such a thought was once more given expression: "What clearly appears then is that once again, reliance on the time-tested doctrine of this Court according deference of what has been ascertained by the trial judge as to which party is more deserving of credence would not be inappropriate." 12 No merit can therefore be said to attach to the first assigned error.

2. It could be that the weakness of the argument to support the first assigned error is not lost on counsel. That is why in the only other error that should be discussed, the third, he would find fault with Judge Lantin "in finding the accused guilty of consummated rape." There is the clear implication that whatever culpability could be attached to what was done by the accused, it should not be that of consummated rape. To make such an assertion requires a certain degree of temerity. He could disregard completely the finding of an impartial and disinterested witness, one, moreover, who is an expert, Dr. Cabreira, that the offense of rape was indeed consummated. The lower court cited the cases of People v. Oscar 13 and People v. Hernandez. 14 There are quite a number of later cases where this Court left no doubt, in the language of Justice J.B.L. Reyes in People v. Pastores , 15 that for rape to be committed, it suffices "that there is proof of entrance of the male organ within the labia of the pudendum." 16 Mention may be made of People v. Canastre , 17 People v. Selfaison, 18 People v. Jose , 19 People v. Obtinalia , 20 People v. Carandang , 21 People v. Royeras . 22

People v. Amores, 23 and People v. Ordonio . 24 Moreover, from United States v. Flores , 25 a 1912 decision, to People v. Yu, 26 a 1961 decision, this Court had duly meted out sentences of conviction for the offense of rape committed against young girls of tender years below the statutory age.

3. No purpose would be served in taking into consideration the alleged second assigned error of the trial court in construing as an admission of guilt the failure on the part of the accused to react or say anything when pointed to by the offended party as the perpetrator of such dastardly act, considering that the evidence of record fully proved the commission of the crime of rape. Nothing can be more just

and legal then than that he should be held fully accountable.

WHEREFORE, the decision of February 18, 1970 of the lower court finding the accused Ricardo Velasco y Abenojar guilty of the crime of consummated rape and sentencing him to reclusion perpetua is hereby affirmed. Costs against appellant.

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Crim - Part I-III Cases