For Mar 14 2017

United States vs.
Dirain
[No. 1948. May 5, 1905.]
THE UNITED STATES, plaintiff and appellee, vs. CLEMENTE DIRAIN, defendant and appellant.
PUBLIC AUTHORITIES. CRIMINAL ATTEMPT AGAINST.The salaries of the police not having been paid. the defendant. the chief of police, accompanied by
four policemen, all armed. went to. the house of the municipal president and compelled him to go to the municipal building. where they kept him four hours. His
relatives having sent him money sufficient to pay the salaries, he was allowed to depart. Held, That the defendant. was guilty of a criminal attempt against the
authorities.
APPEAL from a judgment of the Court of First Instance of Cavite.
The facts are stated in the opinion of the court.
Jos Santiago, for appellant.
Solicitor-General Araneta, for appellee.
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PHILIPPINE REPORTS ANNOTATED
United States vs. Dirain
WILLARD, J.:
The defendant was the chief of police of the town of Ternate in the Province of Cavite, and the court below found as facts, that because the president of the town
had not paid the salaries of the policemen, the def endant, accompanied by four of them armed with guns, went to the house of the president, compelled him by
force to leave it and go to the presidencia and there kept him confined until he had raised enough money to pay what was due them as salaries.
That these facts, if true, constitute the commission of the crime charged in the complaint, there is no doubt. The defendant, however, claims that he did not
compel the president by force to accompany them but went to his house for the purpose of asking for the money for the payment of their salaries; that the
president directed them to go to the presidencia whither he would follow them in a few moments and there arrange the matter, and that this was done, no force
at all being used.
We think the witnesses for the Government are entitled to more credit than those for the defendant. It is admitted that the def endant went to the house of the
president in the middle of the afternoon, armed; that the latter at once went to the presidencia and remained there about four hours; that relatives of his brought
to the presidencia money sufficient to pay the salaries of the policemen and that the president then went home. In view of the fact as claimed by the defendant
that their salaries had been in arrears for some time and that they had been unable to secure payment of them from the president, it is difficult to believe that on
this particular occasion he would have gone to the presidencia under the circumstances related above and remained there about four hours until relatives of his
had produced enough money to discharge the obligations of the police, unless some kind of force or intimidation had been used.
We take into consideration in favor of the defendant article 11 of the Penal Code as an extenuating circumstance and reduce the penalty imposed by the court
below
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VOL. 4, MAY 5, 1905
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United States vs. Candelaria
from four years two months and one day to two years four months and one day. In all other respects the judgment of the court below is affirmed with the costs of
this instance against the defendant.
Arellano, C. J., Torres, Mapa, Johnson, and Carson, JJ., concur.
Judgment modified. United States vs. Dirain, 4 Phil., 541, No. 1948 May 5, 1905
[No. 11847. February 1, 1918.]
THE UNITED STATES, plaintiff and appellee, vs. GELASIO TABIANA and JULIAN CANILLAS, defendants and appellants.
1.RESISTANCE TO AGENTS OF PUBLIC AUTHORITY.A person who at the moment when a policeman comes to arrest him refuses to obey the command of
the latter and strikes him with the fist may be adjudged guilty of simple resistance and serious disobedience under article 252, Penal Code, instead of serious
resistance under article 249. The mere fact that some force is used does not necessarily bring the case under the latter article; and it is f or the court to
determine under all the circumstances whether the act falls under the one provision or the other.
2.ARREST UPON WARRANT; REFUSAL, OF PARTY TO RETURN WARRANT AFTER RECEIVING IT FOR INSPECTION.Where a person who is to be
arrested procures the warrant from the officer charged with its execution upon.the pretense of reading it and thereafter refuses to return the same, such a
person will not be allowed to question the authority of the officer subsequently to arrest him under the authority of such warrant; and the refusal to return the
warrant upon demand is serious disobedience.
3.UNLAWFUL INTERFERENCE BY JUSTICE OF PEACE IN EXECUTION OF PROCESS ISSUED BY HIMSELF.A justice of the peace who issues a warrant
of arrest has no right to interfere with the legitimate action of a police officer engaged in making an arrest there
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United States vs. Tabiana and Canillas.
under; and a justice of the peace who unlawfully interferes upon such occasion may be guilty of an offense under articles 249-252, Penal Code, the same as
any other person.
APPEAL from a judgment of the Court of First Instance of Iloilo. Mariano, J.
Gregorio Araneta for appellants.
Acting Attorney-General Paredes for appellee.
STREET, J.:
This is an appeal from a decision of the Court of First Instance of the Province of Iloilo convicting the defendants upon the charge of attack upon agents of
public authority, in violation of article 249, Penal Code, in connection with the second subsection of article 250, Penal Code. The offense is alleged to have been
committed in the municipality of Leon, Iloilo, upon the 23d day of February, 1915.
At the time of the acts giving rise to this prosecution the defendant Gelasio Tabiana was a well-respected citizen of the municipality of Leon, was a member of
the municipal council, and had twice served as municipal president. He was also at the time a candidate for relection to the latter office. The defendant Julian
Canillas was also a public officer, occupying the position of justice of the peace of the municipality. The two men were brothers-in-law and occupied the same
house. On the morning of the date above-mentioned, a neighbor of Gelasio Tabiana had appeared before Julian Canillas, justice of the peace, and had
procured from him a warrant for the arrest of Tabiana and his herdsman upon the charge of a trivial misdemeanor, consisting of an alleged trespass committed
upon the complainant's premises by Tabiana's cattle. The defendant Tabiana was subsequently acquitted upon this charge; but the offense which was the
subject of prosecution in the present case had its origin in circumstances connected with the arrest under that warrant.
The acts which are the subject of the charge in this case
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occurred about 8 o'clock p. m. in the tienda of the defendant Tabiana, which is located under the apartments occupied by him and Julian Canillas as a
residence, Some reference, however, to things which occurred earlier in the day is necessary.
The warrant for the arrest of Tabiana and his herdsman was placed in the hands of two policemen, Emiliano Callado and Baltazar Cabilitasan, who found the
defendant Tabiana about 4 p. m. out in the country. The defendant showed some irritation and instead of coming in at once told the policemen that he would
come in later and report at the municipal building with his herdsman, the other defendant named in the warrant. The policemen consented, subject to the
approval of the chief of police, and went away. At 6 p. m., the defendant not having appeared at the municipal building, the policemen were directed by the chief
to find him and have him come to the municipal building in obedience to the warrant. The policemen then proceeded to the defendant's house where they found
him in the company of friends. When the policemen announced their errand Tabiana showed further resentment over the idea of being arrested but yielded and
started to the municipal building with the two policemen. In passing near the market place Tabiana detached himself from the custody of the policemen without
their consent and entered the market. The policemen appear to have been considerate and respectful to Tabiana and, instead of following the defendant into the
market, they waited about half an hour, at the end of which time they went into the market and found Tabiana with some of his friends, As Callado, one of the
policemen, approached the defendant the latter arose and asked for the warrant saying, "Unless you show me -the warrant of arrest I shall not go with you."
Callado drew the warrant from his pocket; and as he showed it to the defendant the latter took it, looked at it, and put it into his pocket. After that he said, "Come
along" and gave the policeman a push, as did also more than one other of Tabiana's friends.
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The party then repaired to the municipal building but as it was getting late, the chief of police and other officials were gone. This had the effect of further
angering Tabiana, and the result was that while one of the policemen ran to find the chief of police, Tabiana and his friends left the municipal building, saying
that they were going to find the justice of the peace, the idea being to find somebody who could set the defendant at liberty on bail. As the justice of the peace
lived with Tabiana, they of course directed themselves towards Tabiana's residence. It may be considered that their departure from the municipal building was
effected with the consent of the policemen.
Presently, however, the chief of police arrived at the municipal building, and learning what had taken place, he dispatched the two policemen already mentioned
and a third named Leon Cajilig to go after Tabiana and procure the return of the warrant of arrest and to insist that Tabiana should come down at once so that
the matter could be finished, or as another witness expressed it, to bring him (meaning Tabiana) to the police station.
When the policemen arrived they found Tabiana in his tienda, with a number of friends on hand. When he was requested to give up the warrant and go to the
police station he denied having taken the warrant; and one of Tabiana's friends upstairs called out, "If he has no warrant send him up for a beating." Tabiana
then approached the policeman, Callado, and hit him in the breast with his hand or fist, at which instant the policeman seized him by the wrist and resistance
ceased. As the policeman started to carry the prisoner away two bystanders interfered and took him away from the policeman. By this time Julian Canillas, the
justice of the peace, had arrived on the scene and being evidently excited, he hit Callado on the back, when he too was stopped by another policeman.
Meanwhile Tabiana seems to have retired to his apartment, and Julian Canillas directing himself to the policeman said, "Go back to the municipal building and
tomorrow you
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will take those clothes off," referring to the uniforms worn by the policemen. Canillas also appears to have spoken other excited words little comporting with the
dignity and duties of his office. The policemen then went away, which may be attributed not only to the command of the justice of the peace but also to the fact
that some of Tabiana's friends indicated a determination to fight if the policemen should persist in their purpose of arresting Tabiana. We do not believe that
Tabiana should be held responsible -for these menaces, nor for anything that occurred after he was taken in hand by the policeman, as his active resistance had
then ceased.
At the beginning of this altercation the defendant Tabiana may have entertained the idea that inasmuch as the warrant of arrest had been gotten out of the
hands of Callado the authority of the latter to effect the arrest had thereby ended. This of course was a mistake, as Tabiana then had the warrant wrongfully in
his own possession, and he cannot be permitted to take advantage of the fact that he was withholding it from the officer charged with its execution.
From the proofs of record we are convinced that everything done by Tabiana upon this occasion is properly referable to the idea of resistance and grave
disobedience. We discern in his conduct no such aggression as accompanies the determination to defy the law and its representative at all hazards. Upon the
previous occasions of his contact with the policemen on this day, Tabiana yielded, though with bad grace; and it is evident that he would, upon this occasion,
have gone to the police station again if it had not been for the acts of others in rescuing him, and for the intervention of the justice of the peace, who ordered the
policemen to desist.
Upon the whole we find the defendant Tabiana guilty of resistance and serious disobedience to public authority under article 252, Penal Code, and not of the
more serious offense indicated in subsection 2 of article 249, Penal Code, which was applied by the Court of First Instance. The
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question whether an offense consists of simple resistance or of grave resistance is to be determined with a view to the gravity of the act proved and the
particular conditions under which committed. In considering this question reference should also be had to the nature and extent of the penalties attached by the
authors of the Code to the different offenses. Thus, when it is observed that the offense indicated in article 249 carries with it a penalty ranging from prisin
correccional to prisin mayor in its minimum degree, with corresponding fines, it is obvious that the lawmaker here had in mind serious offenses, characterized
in part at least by the spirit of aggression directed against the authorities or their agents. It should be observed that the circumstances mentioned in subsections
1 to 4 of article 250 are not qualifications of the definition contained in article 249 but are aggravating circumstances which are to be used in the application of
the penalties. This means that the mere fact that an offense of resistance happens to be characterized by some circumstance mentioned in one of these
subsections does not necessarily determine that the offense falls within the definition contained in article 249. It is obvious, for instance, that a Government
functionary may commit an offense under article 252 as well as under article 249; and the relative gravity of the offense determines whether it falls under the
one article or the other.
The greatest hesitancy which we have felt in applying article 252 instead of article 249 to this case arises from the words "shall employ force against them"
(emplearen fuerza contra ellos) contained in article 249. These words, taken without reference to the context, would seem to make absolutely necessary the
application of article 249 in every case where any degree of force is exerted. We believe, however, that the words quoted are to be understood as applying to
force of a more serious character than that employed in the present instance. We are led to this conclusion not only because of the grave penalty attached, as
indicated above, but for the further reason that the Code
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mentions grave resistance further on in the same paragraph and also makes special provision for the offense of simple resistance in article 252. Now practically
and rationally considered in connection with the subject of arrest, resistance is impossible without the employment of some force. A man may abscond or evade
or elude arrest, or may disobey the commands of an officer without using force but he cannot resist without using force of some kind or in some degree. If at the
ultimate moment no f force is employed to resist, there is not resistance but submission; and if it had been intended that every manifestation of force, however
slight, against the authorities and their agents should bring the case under article 249, it was an idle waste of words to make other provisions to cover grave
resistance and simple resistance. It therefore seems reasonable to hold that the words in article 249 relating to the employment of force are in some degree
limited by the connection in which they are used and are less peremptory than they at first seem. Reasonably interpreted they appear to have reference to
something more dangerous to civil society than a simple blow with the hands at the moment a party is taken into custody by a policeman.
As to the defendant Julian Canillas we find that he participated in the offense committed on this occasion, knowing that the defendant Tabiana was liable to
arrest under the warrant issued by himself; and he is therefore punishable in the same manner.
The judgment of the court below is therefore modified and each of the defendants is sentenced to two months and one day of arresto mayor, and to pay a fine of
P125, with the accessory penalties and subsidiary imprisonment in case of insolvency, as provided by law, with costs against the appellants. So ordered.
Arellano, C. J., Johnson, Carson, and Fisher, JJ., concur.
Torres, J., did not sit in the case, but is of the opinion that the councilor should be convicted and the justice of the peace acquitted.
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ARAULLO, J., dissenting:
I do not agree with the foregoing decision. With all due deference to the majority opinion, I believe the defendants should be acquitted.
From the statement of facts made in that decision, as well as from the evidence introduced at the trial, it appears that the defendant, Gelasio Tabiana, tried to
avoid being taken by the policemen from the field in which he was at the time and where these officers served him with the warrant of arrest to the town or to the
police station of the municipality, and also to avoid appearing in said station, he preferring to report in the municipal building of the town, as in fact he did on that
same night; that, therefore, on being shown the warrant of arrest in the field by the policeman Emiliano Callado, he told said policeman and the latter's
companion to precede him to the pueblo, that he would go there himself later on and meanwhile would look for his herdsman, Vicente N., also included in the
warrant of arrest, and with him would appear at the municipal building; that when Tabiana reached the pueblo he went directly to his house; that afterwards,
while accompanied by the policemen, he passed by the market, where he tried to elude the officers, and then went to the municipal building, in which he
inquired for the municipal president, the chief of police, and the justice of the peace; but that, as none of these officials were in the building, he returned home.
It is perfectly clear why the defendant, Tabiana, should have performed all the acts above related, and also why he should have shown some irritation, as said in
the decision, at being required by the policemen to accompany them, if we but take into account, on the one hand, as stated in the same decision, that he was a
citizen of good reputation in that municipality (Leon), was a member of "the municipal council, had been twice president of the municipality, and, at the time of
this arrest, was a candidate for the office of municipal president; and, on the other hand, that, as also set forth in the majority opinion, the
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warrant in the hands of the policemen for the arrest of Tabiana and his herdsman had been procured upon the charge of a trivial misdemeanor consisting of an
alleged trespass upon the complainant's premises by Tabiana's cattle.
From the same statement of facts and from the evidence, it appears that the chief of police, Vicente Gison, was extremely anxious to have Gelasio Tabiana
brought into his presence by the policemen and to have these officers conduct him to the police station by virtue of that warrant, for, at first, after the two
policemen had accepted, conditional upon the approval of the chief of police, Tabiana's proposal to present himself together with his herdsman later on in the
municipal building, the chief, on learning at 6 o'clock that evening- that the defendant had not yet put in an appearance in the municipal building, ordered the
policemen (as stated in the majority decision) to go and look for him and see that he appeared at said building, in obedience to the warrant, But as the
defendant, Tabiana, did in fact appear there and a short while afterwards returned home, as aforesaid, on account of not finding in the building either the
municipal president, the chief of police, or the justice of the peace, said chief of police, arriving a little later at the municipal building, on learning of what had
occurred, sent (as is also stated in the majority decision) the two aforementioned policemen, and another named Leon Cajilig, that is, three policemen, to search
for Tabiana, make him return the warrant of arrest, and insist upon his immediate appearance in order that the case against him might be terminated, or, as
stated by another witness, that Tabiana might be brought to the police station.
That Tabiana should have been somewhat vexed on arriving at the municipal building not to find either the municipal president, ,the chief of police, or the justice
of the peace is perfectly conceivable, because he went to comply with his duty to present himself before the official who had ordered his arrest, and because,
according to his own testimony corroborated by other witnesses, he intended there
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to present bondsmen for the purpose of securing his bail. The fact that Tabiana did present himself in the municipal building that evening is the best proof of the
falsity of the testimony of the policemen to the effect that a few moments before his arrival there and while in the market, upon being approached by one of
these latter, Emiliano Callado, Tabiana demanded to be shown the warrant of arrest, and that when Callado showed it to him, the defendant put it into his
pocket, subsequently denying having it in his possession. The very fact that the defendant did appear in the office of the municipal president that evening proves
that he knew that a warrant of arrest had been issued against him, and unquestionably his subsequent denial that he had it could be of no avail. Moreover, it is
stated in the majority decision, in relating what occurred when Tabiana repaired to the municipal building and did not find the said authorities there, that "this had
the effect of f further angering Tabiana, and the result was that while one of the policemen ran to find the chief of police, Tabiana and his friends left the
municipal building, saying that they were going to find the justice of the peace, the idea being to find somebody who could set the, defendant at liberty on bail.
As the justice of the peace lived with Tabiana, they of course repaired to Tabiana's residence, It may, be considered that their departure from the municipal
building was effected with the consent of the policemen." To these statements of the majority decision there should be added, according to the opinion of the
undersigned, that by those acts Tabiana demonstrated that he did not intend to resist service of the warrant of arrest, that, on the contrary, he respected the writ
but desired to avail himself of the right he had to procure his provisional release under bail by applying to the justice of the peace, the official competent to grant
it, and of his right to be accompanied by the persons who were willing to give the bail, as the evidence shows that they were,
Perhaps the matter would have ended here, if the three
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policemenwhom their chief Vicente Gison ordered, as aforesaid.. to search for Tabiana, make him return the warrant, insist that he present himself
immediately, and bring him under arrest to the police stationhad not gone to Tabiana's residence, where the justice of the peace Julian Canillas also lived.
In the foregoing decision it is stated that the facts proven at the trial constitute, not the offense of assault upon persons in authority, defined in article 249,
paragraph 2, of the Penal Code, but that of resistance and grave disobedience to such persons or to their agents, provided for and punished by article 252 of
the same Code; and from the statement of facts contained in said decision, it is deduced that the resistence and disobedience consisted, not precisely in said
defendant's delay and tardiness in presenting himself before the chief of police in compliance with the warrant of arrest served upon him by the policeman,
Callado, and in having uttered in the market and in his own house the words attributed to him by said policemen; but in the fact, primarily, that the defendant,
when in the market and upon being served by the policeman, Callado, with the warrant of arrest, gave the latter a push, after saying to him "Come along," and
also in the facts that while the policemen were in the store of Tabiana's house to demand of him the return of the warrant and that he accompany them to the
station, Tabiana denied having taken the warrant; that one of his friends cried out from above, "If they have no warrant of arrest, send him up here and we'll give
him a thrashing," on which occasion Tabiana approached the policeman Callado and gave him a blow on the breast with his fist; and, finally, that on being taken
away under arrest, the defendant was snatched from the policeman's custody by two of the persons present in the store; that the justice of the peace Julian
Canillas, who arrived on the scene just at that moment, gave the policeman Callado a blow on the back; that being prevented by another policeman from
continuing to strike, he forthwith ordered the policemen to return to
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the municipal building; and that Canillas in his excitement made use of words unbecoming the dignity and duties of his office.
There is complete and absolute contradiction between the evidence presented by the prosecution and that presented by the defense. While the witnesses for
the prosecution declared that certain facts occurred, those for the defense denied the same, relating in other terms what took place between the policemen and
the def fendant Tabiana, first in the market, then between him and his brother-in-law Julian Canillas, on the one hand, and the policemen, on the other, in the
store of the house in which Tabiana and Canillas resided.
With respect to the push which it is said Tabiana gave the policeman, Callado, when they were in the market, after the warrant of arrest had been served upon
the former by the latter, testimony was given by the police officer, Callado, his companion Baltazar Cabilitasan, and another witness named Ceferino Calucas.
With respect to the blows given, according to the prosecution, by Tabiana and the defendant justice of the peace, Julian Canillas to the policeman Callado while
they were in the store, and in regard to what then occurred, testimony was given by the same policemen and another, Leon Cajilig, who went with them to said
house, and by two other witnesses, Tirso Vazquez and Anastasia Capacillo, who stated that they were then in the aforementioned store.
As shown by the evidence, the defendant Tabiana, was at the time a member of the municipal council, had twice been municipal president, and was a candidate
for the same office, supported by the Progresista Party, of which he was the president in said municipality. Juan Capallawho filed the complaint that gave rise
to the warrant of arrest against Tabiana, accusing the latter and his herdsman of a misdemeanorwas of the leaders and the president of the Nacionalista Party
in said municipality and also this party's candidate for the office of president of the same municipality, wherefore he was a political enemy of Tabiana and
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had not been on friendly terms with him f or a long time. It was also proven that about one month prior to the filing of the complaint by Juan Capalla against
Tabiana which originated the warrant of arrest, on motion by Tabiana the municipal council of Leon, of which he was one of the members, passed a resolution to
recommend to the provincial governor the temporary suspension of Vicente Gison f from the office of chief of police, on account of there being pending against
him two actions, one criminal, brought in the justice of the peace court, for fraud, and the other, brought before the council itself, for the violation of article 28 of
the Municipal Code; and that on March 15, 1915, that is, three months prior to the filing of the complaint against the two defendants in this cause, on motion by
Tabiana, who was still a councilor of the municipality, the council sharply censured the official conduct of the said chief of police, because of his manifest
disobedience ,to the lawful orders of the council by his f failure to appear on the day and hour specified bef fore the committee appointed to investigate the
charges brought against him, and recommended to the provincial governor that Gison be dismissed from the office, if, after investigation, his guilt should be
proven.
In view of the foregoing facts, it is not at all strange that, upon being served by the two policemen with the warrant of arrest issued on complaint filed by his
political enemy Juan Capalla, Gelasio Tabiana should have endeavored to avoid being taken by the policemen to the chief of police, and that he should have
preferred to go to the municipal building' and give bail to the justice of the peace; nor is it at all Strange, and it is rather perfectly conceivable, that the chief of
police, on his part, should have tried to annoy Tabiana by having him conducted, not by a single policeman, as could have been done in view of the trivial
misdemeanor that" gave rise to the complaint against him, but by two policemen, as if it were a question of a dangerous criminal; nor that the chief of police
should have shown such a persistent determination to have the defendant brought before him as to have had the policemen look for
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him at his house on his return from the field, notwithstanding that Tabiana had promised them that he would present himself at the municipal building; nor that
after he had done so and when he was looking for the justice of the peace for the purpose of giving bail, the said chief should have sent three policemen to bring
him to the station, Indeed it is evident that the behavior of the chief of police could only have been the result of the enmity that he harbored against Gelasio
Tabiana and, consequently, also against the latter's brother-in-Iaw and house companion, the justice of the peace Julian Canillas, and of his desire to improve
the opportunity to revenge himself upon the defendant Tabiana on account of the latter's having asked for and obtained of the municipal council the temporary
suspension of the chief of police one month before, that is, on January 15, 1915. Moreover it cannot be denied that, though Tabiana had succeeded in getting
the municipal council to reprimand the chief of police f or the reason above stated and to request the provincial governor to dismiss him. from office, that is, on
March 15, 1915, or three months before the filing of the complaint against Tabiana in the present cause, the chief of policewho was still officiating as such at
the time of the trial and the examination of the policemen, his subordinates, as witnesses for the prosecution, whom it was alleged Tabiana and the other def
fendant Canillas had assaultedcould have influenced them to testify as they did and as appears in their respective testimony. The mere perusal of the
statements made by them on the witness stand convinces the reader that they tried to exaggerate the facts by attributing to Tabiana and his codefendant,
Canillas, words and acts of resistance and insubordination to the authorities, all of which were denied and contradicted by the defendants and their four
witnesses. To be convinced that such was the case, one needs but notice how said policemen in their respective testimony repeated with almost exact
uniformity the words which they said they heard uttered by Gelasio Tabiana and his brother-in-law, the justice of the peace, in the sense above
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stated on the occasions referred to by these witnesses; and how they testified, almost unanimously, with respect to the acts performed, as they declared, by
Tabiana and his codefendant, Canillas, which consisted in Tabiana's having given the policeman Callado a push in the market, and both defendants having
struck this same policeman while they were in the store of Tabiana's house. And such is the uniformity with which each one and all of these policemen testified
with respect to the said words that it would seem that they all had learned them by heart in order to repeat them exactly in their respective testimony. With
respect to the aforementioned acts imputed to the defendants, it was easy for said witnesses to relate them in the general manner in which they did. So, then,
little or no credence can be given to the testimony of the policemen, not only because of what is shown by their testimony in itself, but also because their
individual testimony must necessarily be regarded as suspicious and partial in favor of the prosecution, so shown by their own acts at the time of their execution
of the warrant for the defendant's arrest, in view of the aforementioned antecedents as well as of their relations with the chief of police Vicente Gison, who must
have entertained no very cordial sentiments towards Tabiana and the latter's brother-in-law Canillas.
It is true that a witness, not a policeman, Ceferino Calucas, corroborated the testimony given by the policemen with respect to Tabiana's pushing the policeman,
Callado. This witness stated that when he entered the market Tabiana was already there; that a short while afterwards Callado arrived and went directly into the
market toward Tabiana; that the latter turned his head and said: "Here is the policeman who wants to arrest me," and then asked the policeman where the
warrant of arrest- was, to which the latter replied: "Here it is;" that Tabiana took the warrant from the policeman, went with it to a place where there was light,
read it, and then said: "Let's go to the municipal building," and thereupon pushed the policeman, saying: "If you people want a lawsuit, we'll go to court; if you
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want a fight, we'll fight;" and that afterwards they went to the municipal building. This witness ended his testimony by admitting that he had seen nothing more.
The account of this witness differs from that of the policeman Callado in respect to what occurred in the market between the latter and his companion
Cabilitasan, on the one hand, and Tabiana, on the other. The policeman Gallado in his testimony, after saying that he waited about half an hour for Tabiana to
come out of the market, stated that he looked for the latter in the market; that in the doorway he met a man named Apolonio Cajilig to whom he said that he was
going to catch Tabiana because witness had a warrant of arrest; that then he went to where Tabiana was, and when within two brazas of him Tabiana stood up
and said: "So then, here is the policeman who is going to arrest me. * * * I am not afraid of all of you," and asked him where the warrant of arrest was; that upon
witness replying that he himself had it, Tabiana said to him that unless witness showed him the warrant, he would not go with witness; that thereupon witness
took the warrant out of his pocket and showed it to Tabiana; that the latter took it, looked at it and put it into his pocket, afterwards saying: "Let's go," and gave
witness a push; that thereupon Apolonio Cajilig ran toward witness, caught him by the coat near his throat and also pushed him; that immediately another man
named Damian Calope likewise pushed him, as did also still another man named Maximo Asebuque; that when these men had pushed him, witness said to
them: "What are you doing here outside?" that thereupon they went away; that Bernabe Calope approached witness, caught him by the shoulder and told him
not to insist on arresting Gelasio Tabiana, because the latter knew more than witness; that witness replied that such was indeed the case because Tabiana was
a councilor, but that Tabiana had to remain that night in witness' custody because witness had a warrant of arrest; and that after all this, Tabiana said to witness:
"Let's go to the municipal building."
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As is seen, the policeman Callado quotes Tabiana as uttering on said occasion several words more than those mentioned by the witness Calucas, and, like his
companion Cabilitasan, relates acts of aggression or assault which Calucas did not mention in his testimony as committed by other men in Tabiana's company
in the market at that same momentnor did he even make any reference to the said menalthough, according to his own testimony, he was present when the
policemen and Tabiana left the market and went to the municipal building. Neither did the policeman Callado say that on that occasion Tabiana uttered the
following words: "If you people want a lawsuit, we'll go to court; and if you want a fight, we'll fight;" nor did the witness Calucas testify that Tabiana then said to
Callado: "So then, here is the policeman who is going to arrest me. I am not afraid of all of you." The fact that Calucas did not say these wordsbut only the
others, to wit, "If you people want a lawsuit, we'll go to court; etc." not mentioned by the policemen Callado and Cabilitasan in their testimony relating what
occurred in the market, these being the very same words that with others were uniformly repeated by said policemen and their companion Cajilig as having
been uttered by Tabiana and Canillas on the other occasionstaken in connection with. the discrepancy aforementioned between the testimony of the same
witness and that of said two policemen, raises the suspicion that, once learned, it was easier for the witness to remember the words he was to put into Tabiana's
mouth on that occasion than the acts he was to attribute to the latter and to the other men who, according to the policemen, were then with Tabiana in the
market. For this reason, said witness made no mention of the presence there of Apolonio Cajilig, of Damian Calope, and Maximo Asebuque, of Cajilig running
towards the policeman Callado, catching him by the coat near his throat, and pushing him, nor of the other two pushing said policemanall of which, if true,
said witness would have seen also.
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Of the two witnesses for the prosecution who testified that they were present when, the policemen being in the store of the defendants' house, Tabiana gave the
policeman Callado a blow with his fist, and the other defendant, Canillas, a blow on the back, The first, named Tirso Vazquez, stated that when Callado entered
the store Tabiana appeared, and the former said to the latter: "Seor Gelasio, if the saints are merciful, let them return to me the warrant of arrest you took f
from me, and come with me to the municipal building;" that then Tabiana replied: "I have no warrant of arrest," and immediately gave a blow with his fist (he
does not say to whom, but supposedly to the policeman) ; that when witness tried to go out he met only Julian Canillas who, immediately after he had entered,
struck Callado a blow on the back; and that thereupon witness left for home.
However, in reply to questions put immediately after testifying that on trying to go out he saw only Julian Canillas, this witness stated that Francisco and Meliton
Canillas were in the doorway, and that many other people were there, though he did not notice who they were. But this witness did not mention in his testimony
that when the policeman Callado requested Tabiana to return the warrant of arrest to him and when Tabiana replied that he had not taken it, a man named
Apolonio Cajilig said that if they had no warrant of arrest they should send them (the policemen) up for a thrashing; nor did he state that after being seized by
the wrist to force him outside, Tabiana struck the policeman; nor that by assisting Tabiana in his struggle with the policeman, Apolonio Cajilig and Francisco
Canillas prevented said removal; nor that when the policeman Callado had his back toward the door Juan Canillas, the other defendant, struck him on the back.
All this, however, was related in the testimony of the policeman Callado and his companions Cabilitasan and Leon Cajilig as having then occurred.
Therefore said policemen and the witness Vazquez contra-
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dicted themselves. Such contradiction shows the measure of credence that should be allowed the testimony of this witness and the three policemen.
The other witness, Anastasia' Capacillo, also presented by the prosecution as an eyewitness to what occurred in the store, likewise limited her testimony to
saying that she went there that evening to buy some petroleum; that on entering; the door she saw Gelasio Tabiana strike the policeman; that afterwards she
also saw the justice of the peace strike him; and that when she observed that things looked bad she returned home. It is strange that having seen Tabiana and
the justice of the peace Canillas strike the policeman, this witness should have said nothing in her testimony about the struggle that then took place between
Tabiana, Francisca Canillas, and Apolonio Cajilig on the one hand, and the policemen on the other (according to the testimony of these same policemen),
notwithstanding that she must have witnessed it because it all occurred at the same time. It is further to be considered that this witness was an aunt, as she
herself stated, of the complainant, Juan Capalla, a political enemy of Tabiana and the same person who filed the complaint causing the warrant of arrest to issue
against Tabiana which, with such inordinate zeal and with so much determination, the chief of police Vicente Gison endeavored to enforce.
In view of the evidence presented by the prosecution, it cannot therefore be considered as proven that the defendants performed the acts alleged to constitute
the offense of assault upon the agents of the authorities which, in the majority decision, have been classified as an offense of resistance and serious
disobedience to such agents, nor that the defendants uttered the words and phrases attributed to them indicative of opposition and disobedience to the
policemen when attempting to serve the warrant of arrest upon Tabiana, one of the defendants. On the contrary, it very clearly appears from the evidence of the
prosecution that Tabiana did not seek to disobey the warrant of arrest,
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nor did he fail to comply therewith, forin compliance with his offer to the policeman Callado that afternoon when the defendant was in the field, to wit, that the
officer might precede him to the pueblo, and that he (Tabiana) would follow and meanwhile would go to look for his herdsman Vicente who was also included in
the warrant of arresthe did in fact then return to the pueblo and, first passing by the market, went, now accompanied by the policemen, to the municipal
building where he inquired for the municipal president, the justice of the peace, and the chief of police. This he undoubtedly would not have done if he had not
intended to submit to the warrant of arrest, or if he had planned to oppose it in the manner related by these policemen, and much less if he had actually had the
warrant in his possession and had refused to deliver it to the policemen (as the latter testified that he did), in order to resist returning with them to the municipal
building that same evening or to resist being taken by them to the police stationbecause the defendant had already acknowledged service of the warrant in
the municipal building a few moments before, and therefore a denial of the existence of the warrant could have served no purpose whatever.
On the other hand, from the evidence adduced by the defense it appears that neither the defendants nor the persons who were with Tabiana in the market that
afternoon committed any act of aggression, assault, or resistance upon or to the policemen who went there in search of Tabiana; that Tabiana had himself
accompanied by Apolonio Cajilig on the way from the market and, besides, sent for Bonifacio Alutaya in order to use them as his bondsmen and thus obtain his
provisional liberty upon presenting himself in the municipal building that evening where he expected to find the justice of the peace, that not finding the latter
there, he went to his house with the said Apolonio Cajilig, where the justice of the peace, his brother-in-law, was living, and that once there, in the presence also
of Apolonio Cajilig and Bonifacio Alutaya, he presented these two men as his bondsmen; that the justice of the peace accepted
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them as such and fixed the amount of the bail at P25 on account of the offense being a mere misdemeanor; that the justice of the peace so informed the
policemen and ordered them to withdraw because the defendant was at liberty under bail; that, as the policemen demurred, the justice of the peace, as he
testified at the trial, told them to return that same evening and he would issue an order in writing; that the policemen left and did not return until the following
morning; that then the justice of the peace handed them a communication for the chief of police in which it was stated that the defendant Tabiana was released
under bail; that later that same morning, the justice of the peace and Tabiana went to the municipal building, followed by the policemen, and then and there the
bail bond was made out and signed by the bondsmen, thus setting Tabiana at liberty; and that upon the trial of Tabiana under the complaint filed by Juan
Capalla, this defendant was acquitted by the justice of the peace of Tigbauan, who tried the case because the defendant Canillas, justice of the peace of Leon,
was inhibited by reason of being Tabiana's brother-in-law.
It cannot be denied that if Gelasio Tabiana was not taken to the municipal building or to the police station that evening by the policemen who went to his house,
there must have been some reason that prevented it. As it cannot be deemed proven, as aforesaid, that the reason just alluded to was resistance on Tabiana's
partwith the cooperation of his brother-in-law, the justice of the peace Canillasto following the policemen, the only reasonable explanation that can be given
is that, through the acceptance by the justice of the peace of the verbal security of P25 offered by the defendant Tabiana and given by Apolonio Cajilig and
Bonifacio Alutaya, Tabiana was allowed provisional liberty until the following day when such verbal security was to be formalized in writing, and these facts
from the testimony given both by the justice of the peace and by Tabiana and his witnesses, among them, one of the bondsmen themselvesappear to be
corroborated by the
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fact of Tabiana's having gone in company with the justice of the peace, his brother-in-law, on the following morning to the municipal building and there having
duly given the required bail, whereby he was temporarily released, It is true that that same morning, according to the testimony of the policeman Emiliano
Callado, corroborated by his chief, Vicente Gison, five policemen with Callado, all armed with revolvers and sabers and acting under the orders of the chief of
police, again stationed themselves around the house in which Tabiana and Canillas were living, and there, as Callado also stated, stood guard until Tabiana
came out, when the policemen followed him and the justice of the peace as they went to the municipal building to give bail. But these very facts, in conjunction
with the one which the prosecution apparently tried to prove, to wit, that the previous evening there took place between the defendants and these three
policemen the occurrences related by the latter, can also serve as proof of the fact that the chief of police, Vicente Gison, wished to make a show of his authority
and power by annoying Tabiana and humiliating him, for, as it may easily be understoodas Tabiana was living in the same house with the justice of the peace,
who prevented the arrest of Tabiana that eveningthere was no need for five armed policemen to go to watch Tabiana's house and conduct him, as if he were a
dangerous criminal, to the municipal building, notwithstanding that he was accompanied by the justice of the peace himself. Thisin connection with the facts
already stated concerning the resentment which the chief of police must have harbored against Tabiana, and, further, in connection with the very significative
detail that the proceedings were instituted and prosecuted solely against Tabiana and Canillas, notwithstanding that, according to the testimony of these very
same policemen, Apolonio Cajilig, Damian Calope, Maximo Asebuque, and Domingo Callado also assaulted and attacked said policemen, the last-named even
going so far as to lay hand on his bolo and threaten the policeman Callado
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when he tried to arrest Tabiana, according to this policeman's testimony all the said five men just above named thus cooperating in the execution of the crime
brings out in bold relief the main features of this prosecution.
If the defendants ought to be acquitted for lack of proof of the acts which, as constituting a crime, were charged against them in the complaint, the acquittal of
one of them, to wit, the justice of the peace Julian Canillas, independently of that of his codefendant, is in all respects proper, because, even though he may
have performed those acts, he could not be considered guilty of, and consequently convicted for, the offense of assault upon the agents of the authorities, nor of
that of resistance and serious disobedience to such agents.
In fact, said justice of the peace, in the exercise of his authority as such and by virtue of the complaint presented against Tabiana" by Juan Capalla for the
commission of a misdemeanor against property, issued against Tabiana the warrant of arrest carried by the policeman Callado and his companion Cabilitasan,
and, in the evening of the same day when the warrant was issued, upon Tabiana's applying to said justice of the peace and while these two, the latter and
Tabiana, were in their own house, two bondsmen appeared to obtain Tabiana's provisional liberty for that night and until the bail-bond should be formalized in
writing in the municipal building on the following day. The justice of the peace accepted the bail offered, fixed the amount at P25, and ordered the policemen to
withdraw, for, as the justice of the peace himself said in his testimony, he was convinced that he was empowered provisionally to release the defendant Tabiana
under the bail given by these bondsmen, and therefore exercised such authority,' The justice also testified that he told the policemen to go to the municipal
building because the defendant was released under bail.
The foregoing facts are proven, not only by the testimony of the justice of the peace himself and his codefendant Tabiana, but also by that of the bondsman
Apolonio Cajilig and the three witnesses Maximo Asebuque, Damaso
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Cambronero, and Lucas Cabaran, present on that occasion, Asebuque, who went in search of the other bondsman Bonifacio Alutaya, being one of themall of
whom witnessed Tabiana's offer to give bail, and the acceptance of that offer by the justice of the peace. These facts were not refuted by the prosecution,
notwithstanding that it cross-examined the policeman Callado; on the contrary, it appears from Callado's own testimony on direct examination, that, in the very
store of the house of Tabiana and the justice of the peace, that night when the policemen went there, as they stated, to take the warrant of arrest from Tabiana
and take him to the station, Francisco Canillas and Meliton Canillas, who were also there, offered to give bail for Tabiana, even though it Were P1,000 in cash,
and stated that for this purpose they had brought the land-tax receipts. The same disposition was also manifested by those who accompanied the defendant
Tabiana from the market to the municipal building, among whom were Apolonio Cajilig and Damaso Asebuque, the latter being the one who went in search of
Bonifacio Alutaya to bring him to the house of the justice of the peace, to which the defendant Tabiana went, together with his companions, because he had not
found either the justice of the peace, the municipal president, or the chief of police in the municipal building.
Viada, in his Commentaries on the Penal Code (Vol. II, 4 ed., p. 346), in discussing article 278 of the Penal Code of Spain (No. 265 of that of the Philippines)
which punishes with the maximum of the respective penalty and also with the penalty of temporary, absolute disqualification, any person who, being vested with
authority, commits any of the crimes specified in the three chapters preceding said article, among which crimes are included those relative to assault upon the
authorities and their agents, and of resistance and serious disobedience thereto, says:
"We do not believe there can be assault or disobedience upon or to one authority by another when they both con-
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tend in the exercise of their respective duties. If in such a case, one of them abuses, defames, insults, or outrages the other, the offense of abuse, or private
defamation, or that of lesiones, if the outrage reaches that point, would be committed, but not the crime of disobedience, nor that of assault, which involves the
exercise of authority by the offended person and the lack of this circumstance on the part of the offended party. It would be otherwise if the person vested with
authority, but not acting in the performance of his duty, should abuse, defame, or outrage the person exercising the private duties of his office; in this case, there
actually being disobedience or assault, the special aggravation defined in this article would be applicable."
In a case where a dispute or quarrel arose in the street between several persons, the municipal judge, accompanied by a constable, appeared on the scene to
pacify the disputants. The alcalde also intervened and pushed aside the judge, telling him that he, the judge, was nothing there, that in the street he, the alcalde,
alone commanded, with other unbecoming and threatening expressions which caused the judge to withdraw. The court of Soria, Spain, held that the facts
constituted the offense of assault upon a public official and sentenced the defendant to the corresponding penalty in its maximum degree, taking into account for
this purpose the circumstance of the offender being vested with authority. An appeal from that judgment was taken by the fiscal on the ground of violation of law,
whereupon the supreme court, in its decision of November 4, 1890, sustained the appeal on the following grounds:
"That, in offenses of assault as in those of disobedience, the legislator has penalized disobedience to the authorities according to the nature and the greater or
lesser violence employed in the act, whoever be the person who commits it and whatever be his capacity. Such capacity may give rise to greater liability,
pursuant to the provisions of article 278 of the Code [265 of that of the Philippines].
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"That such special note of the offenses mentioned excludes the legal possibility of including among them either the outrage that a superior .may commit upon an
inferior in the course of their relations, even when both of them are public officials, or the abuses, of whatever nature they may be, which one authority commits
against another in cases of actual conflict of jurisdiction, inasmuch as, in such cases, there is properly no disobedience against the principle of authority, but an
endeavor to enforce the authority which each of the disputants represents; therefore, even though it is evident that all authorities owe each other mutual respect,
and that the violence which they commit between themselves on the occasion of such conflicts might perhaps require a special correction they do not, for the
reasons stated, fall within the present conception of the offenses of assault and disobedience, and can only be punished, under the Code, according to their
nature.
"That the fact that an alcalde, in his character as such and on the occasion of the exercise of his powers, forcibly prevents a municipal judge from exercising his
own, evidently constitutes the coercion mentioned in article 510 of the Code."
In another case, a dispute having arisen in the yard of a penal establishment between a prisoner and a guard on duty, as the latter made a motion as if he would
draw a weapon, another guard, also on duty, intervened, held the first guard fast and, assisted by several others, caused him to withdraw. The latter thereupon
became angry, drew a knife and inflicted upon the guard who intervened an incised ,wound which was cured in seven days, leaving no deformity nor
impediment to labor. The criminal court of Tarragona, Spain, classified the affair as an armed assault against an agent of the authorities, and convicted the
defendant of said crime. The defendant, however, appealed from this judgment on the ground of violation of law, and the supreme court of Spain in its decision
of January 9, 1890, sustained the appeal on the following grounds:
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"That the dispute between two guards of a penal establishment, on the occasion of which one of them inflicted a slight wound upon the other, bears none of the
features properly appertaining to the crime of assault, if the quarrel was really of a private nature, because it did not affect the service at the moment it arose,
and, on the other hand, it cannot be said that the principle of authority was violated or impaired as a consequence of the aggression, for the reason that both
disputants were vested with the same official character."
It is unquestionable that if the justice of the peace Julian Canillas struck the policeman Callado a blow on the back while the latter and his companions were
insisting upon taking Tabiana away with them under arrest, and if he made remarks which might be considered offensive to them, such an outrage was
committed by a superior, the justice of the peace, upon an inferior, the policeman, in the course of their official relations and in the performance of official duties
by the justice of the peace, or, better said, within the very performance of such duties, for, the policeman Callado being charged with serving upon Tabiana the
warrant of arrest issued by the justice of the peace Canillas, this latterunder the power and authority vested in him, in ordering said policeman and his
companions to withdraw, and in telling them that Tabiana was released under bailset aside, or, at least, suspended said warrant of arrest, he being the only
person who could take such action, the justice or legality of which it was not incumbent upon the policemen to dispute, but, on the contrary, should have been
immediately acquiesced in by them.
Therefore, in conformity with the legal doctrine laid down in the above-cited decisions, there not having been any act of disobedience against the authorities,
and as it cannot be said that the principle of authority was violated or impaired in consequence of the blow given by the justice of the peace to the policeman
Callado, or in consequence of the words or phrases attributed to said justice
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of the peace with respect to the policemen herein concerned, these acts do not constitute the offense of assault upon the agents of the authorities, nor that of
resistance and grave disobedience to the same. Consequently, the defendant Canillas should not be convicted of either of these offenses.
MALCOLM, J., dissenting:
In addition to the analysis of the facts by Justice Araullo, I also dissent because I am convinced that those provisions of the Penal Code dealing with assaults
upon persons in authority are no longer in force. To elucidate
Title III of Book II of the Penal Code concerns crimes against public order. Chapter I is entitled "Rebellion." It contains such provisions as these:
"The crime of rebellion is committed by any person or persons who shall rise publicly and in open hostility to the Government for any of the following purposes:
"1. To proclaim the independence of any part of the territory known as the Philippine Islands.
"2.To dethrone the King, depose the Regent, or overthrow the Regency of the Kingdom, or deprive the King or Regent of his personal liberty or compel him to do
something against his will." (First article of chapter.)
Surely this chapter is now a nullity. Chapter II is entitled "Sedition." It has been superseded by Act No. 292 of the Philippine Commission. Chapter III dealing with
provisions common to the two next preceding chapters falls with the chapters on which dependent. Then follow Chapter IV, assault upon persons in authority
and their agents, resistance and disobedience thereto, and Chapter V, contempts, insults, injurias, and threats against persons in authority, and insults, injurias,
and threats against their agents and other public officers. These are the two chapters which I claim are no longer in effect.
Notice some of the provisions of these chapters. Article 249, No. 1, reads: "The offense of assault (atentado) is committed by: 1. Persons who, without a public
uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of
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rebellion and sedition."That is, rebellion and sedition against Spain. No. 2 of the same article reads: "Any person who shall attack, employ force against, or
seriously resist or intimidate, any person in authority, or the agents of such person, while engaged in the performance of official duties, or by reason of such
performance."That is, any person in authority Under the Government of Spain. Passing on to the next chapter, article 253, No. 1, reads: "The offense of
contempt is committed by: 1. Anyone who, while a Minister of the Crown or any person in authority is engaged in the performance of official duties, or by reason
of such performance, shall by word or deed defame (calumniar), abuse (injuriar), insult, or threaten such minister or person in his presence or in any writing
addressed to him."That is, contempt of a Minister of the Crown of the Monarchy of Spain. For these offenses one can be punished with prisin correccional or
prisin mayorthat is, with as much as six years and one day imprisonment. Offenses which in a democracy are either taken as a joke or pass with a
reprimand, or are penalized with a small fine, or a few days imprisonment, are in a monarchy treated as "lese majest" and solemnly and severely punished.
Again, it is pertinent to ask, Who were the persons in authority for resistance and disobedience to whom such grave penalties were to be meted out? These
persons included the Governor-General, who was the personal representative of the Spanish Crown in the Philippines, and who exercised almost regal power;
alcaldes mayores, who for a long- period of time combined both executive and judicial functions; civil governors, invariably Spaniards, who were the direct
representatives of the Governor-General; and the guardia civil of unsavory reputation. These provisions of the penal law were moreover f formulated by Spain,
for the good of Spain, and merely through the will of Spain were they extended to the Philippines.
It is a general principle of the public law that on acquisition of territory the previous political relations of the
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ceded region are totally abrogated, The political law pertaining to the prerogatives of the former Government necessarily ceases.
"It cannot be admitted that the King of Spain could, by treaty or otherwise, impart to the United States any of his royal prerogatives; and much less can it be
admitted that they have capacity to receive or power to exercise them. Every nation acquiring territory, by treaty or otherwise, must hold it subject to the
Constitution and laws of its own government and not according to those of the government ceding it." (Pollard vs. Hagan [1845], 3 How., 212.)
So likewise it cannot admit of doubt that those provisions of the Spanish Penal Code concerning assaults upon persons in authority were in the nature of
political law enacted and promulgated by a monarchy and were thus entirely incompatible with democratic institutions. On every occasion when questions of this
nature have been presented to the Supreme Court of these Islands, laws and parts of laws of a similar character have been held not to be in force. Thus in The
United States vs. Sweet ([1901], 1 Phil, 18), the Supreme Court found the Spanish Military Code no longer operative in the Philippines, presumably because a
political law. In The United States vs. Balcorta ([1913], 25 Phil., 273), the Supreme Court held those articles of the Penal Code defining special crimes against
the state religion as necessarily not now in effect in the Philippines.
Enough has been said to demonstrate that Chapters IV and V, title 3, book 2, of the Penal Code are no longer in force in the Philippines. If necessary, many
additional arguments and authorities could be adduced and included in support of this conclusion. As the Philippine Legislature is even now considering a
modern Correctional Code to supplant the old Penal Code, such an extended discussion would not prove profitable, and would merely serve to pile up
arguments on a point which to me appears not to be in doubt.
Judgment modified. United States vs. Tabiana and Canillas., 37 Phil. 515, No. 11847 February 1, 1918
G.R. No. L-40577 August 23, 1934

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
PROCOPIO REYES, POLICARPIO NACANA, FLORENTINO CLEMENTE, HERMOGENES MALLARI, MARCELINO MALLARI, CASTOR ALIPIO, and
RUFINO MATIAS, defendants-appellants.
Hilarion U. Jarencio for appellants.

Acting Solicitor-General Pea for appellee.
HULL, J.:
Appellants were convicted in the Court of First Instance of Tarlac of a violation of article 133 of the Revised Penal Code, which reads:
ART. 133. Offending the religious feelings.The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be
imposed upon anyone who, in a place devoted to religious ceremony, shall perform acts notoriously offensive to the feelings of the faithful.
In the barrio of Macalong, municipality of La Paz, Province of Tarlac, there is a chapel where it is customary to hold what is known in local parlance as a pabasa.
As stated by the lower court, "the term pabasa is applied to the act of the people, professing the Roman Catholic faith," of assembling, during Lent, "at a certain
designated place, for the purpose of reading and the life, passion and death of Jesus Christ. A book known as the 'Vida, Pasion y Muerte de Jesucristo', which
contains a fun account in verse of the life, passion and death of Jesus Christ, is used in this celebration." The pabasa in Macalong used to begin on Palm
Sunday and continue day and night, without any interruption whatsoever, until Good Friday. As usual, refreshment and food were served in the yard adjoining
the chapel, and the expenses incidental thereto were defrayed by different persons.
While the pabasa was going on the evening of April 10, 1933, between 11 and 12 o'clock, the defendants Procopio Reyes, Policarpio Nacana, Florentino
Clemente, Hermogenes Mallari, Marcelino Mallari, Castor Alipio, and Rufino Matias arrived at the place, carrying bolos and crowbars, and started to construct a
barbed wire fence in front of the chapel. Alfonso Castillo, who was chairman of the committee in charge of the pabasa, tried to persuade them to refrain from
carrying out their plan, by reminding them of the fact that it was Holy Week and that it was highly improper to construct a fence at that time of the evening. A
verbal altercation ensued.
When the people attending the pabasa in the chapel and those who were eating in the yard thereof noticed what was happening, they became excited and left
the place hurriedly and in such confusion that dishes and saucers were broken and benches toppled over. The pabasa was discontinued and it was not resumed
until after an investigation conducted by the chief of police on the following morning, which investigation led to the filing of the complaint appearing on pages 1
and 2 of the record.
Many years ago the Clemente family by informal donation gave the land on which the old chapel was erected. When it was destroyed, the present chapel was
erected, and there is now a dispute as to whether the new chapel is not now impinging on the land that belongs to the Clemente family. The appellants are
partisans of he Clemente family.
It is to be noted that article 133 of the Revises Penal Code punishes acts "notoriously offensive to the feelings of the faithful." The construction of a fence, even
though irritating and vexatious under the circumstances to those present, is not such an act as can be designated as "notoriously offensive to the faithful", as
normally such an act would be a matter of complete indifference to those not present, no matter how religious a turn of mind they might be.
The disturbance or interruption of any ceremony of a religious character under the old Penal Code was denounced by article 571 and was punished by arrest
from one to ten days and a fine of from 15 to 125 pesetas. But this article was omitted from the Revised Penal Code and the offense, if any was committed by
the appellants, is denounced in article 287 as an "unjust vexation" and punished by arresto menor or a fine ranging from 5 to 200 pesos or both.
It is urged upon us that the act of building a fence was innocent and was simply to protect private property rights. The fact that this argument is a pretense only
is clearly shown by the circumstances under which the fence was constructed, namely, late at night and in such a way as to vex and annoy the parties who had
gathered to celebrate the pabasa and is further shown by the fact that many of the appellants saw fit to introduce as their defense a false alibi.
Appellants are therefore acquitted of a violation of article 133 of the Revised Penal Code but found guilty of a violation of article 287 of the Revised Penal Code
and are sentenced each to a fine of P75 with subsidiary confinement in case of insolvency, together with the costs in both instances. So ordered.
Avancea, C.J., Abad Santos, Vickers, and Diaz, JJ., concur.
[No. L-11598. January 27, 1959]
THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. FEDERICO BUSTAMANTE, defendant and appellant
1.MARRIAGE; VICE MAYOR ACTING AS MAYOR; AUTHORITY TO SOLEMNIZE MARRIAGE.The vice mayor of a municipality acting as Acting Mayor has
the authority to solemnize marriages, because if the vice mayor assumes the powers and duties of the office of the mayor, when proper, it is immaterial whether
it is because the latter is the Acting Mayor or merely Acting as mayor, for in both instances, he discharges all the duties and wields the powers appurtenant to
said office. (Laxamana vs. Baltazar, 92 Phil., 32; 48 Off. Gaz. No. 9, 3869; see 2195 Revised Administrative Code.)
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People vs. Bustamante
2.CRIMINAL PROCEDURE, RULES OF, INFORMATION CHARGING BIGAMY; WRONG AVERMENT WHO SOLEMNIZED SECOND MARRIAGE.The wrong
averment made in the information charging bigamy as to the person that solemnized the second marriage is considered unsubstantial and immaterial, for it
matters not who solemnized the marriage, it being sufficient that the information charging bigamy alleges that a second marriage was contracted while the first
still remained undissolved. The information filed in the case at bar having properly stated the time and place of the second wedding, was sufficient to apprise the
defendant of the crime imputed.
APPEAL from a judgment of the Court of First Instance of Pangasinan. Muoz, J.
The facts are stated in the opinion of the Court.
Assistant Solicitor General Antonio A. Torres and Atty. Eduardo C. Abaya for appellee.
Ramon S. Milo for appellant.
REYES, J. B. L., J.:
Charged and convicted of the crime of bigamy in the Court of First Instance of Pangasinan, Federico Bustamente appealed to this Court on points of law.
The records disclose that defendant-appellant Bustamante was united in wedlock to one Maria Perez on August 9, 1954, before the Justice of the Peace of
Binalonan, Pangasinan (Exh. "A", pp. 9-11, t.s.n.). A little over a year later, or on September 16, 1955, he contracted a second marriage with Demetria Tibayan,
solemnized before Vice-Mayor Francisco B. Nato of Mapandan, Pangasinan, who was then acting as Mayor of said Municipality (Exh. "B"), while the first
marriage was still subsisting. Defendant dwelt with Demetria and her parents for about a month, after which time he returned to Calasiao, Pangasinan to live
with the first wife, Maria Perez. In the course of her search for him, Demetria discovered from the Binalonan municipal authorities the previous marriage of
defendant Bustamante. Hence, this accusation.
66
66
Defendant did not testify in his behalf during the trial. The main problem poised in this appeal concerns the authority 01 Francisco Nato to solemnize the second
marriage.
It appears that Enrique Aquino and Francisco Nato were the duly elected mayor and vice-mayor, respectively, of the municipality of Mapandan, Pangasinan in
the elections of 1951. On September 16, 1955, Aquino went on leave of absence for one month. In view of this, the vice-mayor was designated by the mayor to
take over the rein of municipal government during his absence; and, Nato was acting in this capacity when he performed the second marriage of Bustamante
with Demetria Tibayan.
Appellant, relying upon article 56 of the Civil Code of the Philippines
"ART. 56. Marriage may be solemnized by:
(1) The Chief Justice and Associate Justices of the Supreme Court;
(2) The Presiding Justice and the Justices of the Court of Appeals;
(3) Judges of the Courts of First Instance;
(4) Mayors of cities and municipalities;
(5) Municipal judges and justices of the Peace;
(6) Priests, rabbis, ministers of the gospel of any denomination, church, religion or sect, duly registered, as provided in article 92; and
(7) Ship captains, airplane chiefs, military commanders, and consuls and vice-consuls in special cases provided in articles 74 and 75."
contends that there could not have been a second marriage to speak of, as Nato was merely acting as mayor when he celebrated the same, hence, without
authority of law to do so. He lays stress on the distinction made by this court in the case of Salaysay vs. Hon. Fred Ruiz Castro, et al. * 52 Off. Gaz., No. 2, 809,
between an "Acting Mayor" and a "Vice-Mayor acting as Mayor", urging that
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* 98 Phil., 364.
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67
while the former may solemnize marriages, the latter could not.
We find this contention untenable. When the issue involves the assumption of powers and duties of the office of the mayor by the vice-mayor, when proper, it is
immaterial whether it is because the latter is the Acting Mayor or merely acting as Mayor, for in both instances, he discharges all the duties and wields the
powers appurtenant to said office (Laxamana vs. Baltazar,1 48 Off. Gaz. No. 9, 3869; Sec. 2195, Revised Administrative Code). The case of Salaysay vs.
Castro (supra) cited by the appellant, which revolves upon the interpretation of section 27 of the Revised Election Code, is entirely distinct from the one at bar.
This instance does not involve a question of title to the office, but the performance of the functions thereunto appertaining by one who is admitted to be
temporarily vested with it. As correctly observed by the lower court, that case even concedes and recognizes the powers and duties of the Mayor to devolve
upon the Vice-Mayor whenever the latter is in an acting capacity. The word "acting" as held in the case of Austria vs. Amante,2 45 Off. Gaz., 2809, when
preceding the title of an office connotes merely the temporary character or nature of the same.
The information charges that the appellant contracted the second marriage before the Justice of the Peace of Mapandan, Pangasinan, while the marriage
certificate, Exh. "B", and the testimonies of witnesses indicate clearly that it was performed by Francisco Nato. Appellant assigns as error the admission by the
lower court of the said evidence, notwithstanding counsel's objection. This is not reversible error. The wrong averment, if at all, was unsubstantial and immaterial
that need not even be alleged, for it matters not who solemnized the marriage, it being sufficient that the information charging bigamy alleges that a second
marriage was contracted while the first still remained undissolved. The information filed in this case which properly states the time and place of the
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1 92 Phil., 32.
2 79 Phil., 780.
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People vs. Guiao
second wedding, was sufficient to apprise the defendant of the crime imputed. Neither procedural prejudice nor error was committed by the lower court in finding
appellant guilty.
Article 349 of the Revised Penal Code attaches the penalty of prisin mayor to the crime of bigamy. Pursuant to the Indeterminate Sentence Law, the court must
impose an indeterminate penalty, the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the
Code (in this case the medium period of prisin mayor, there being no aggravating nor mitigating circumstances), and the minimum which shall be within the
range of the penalty next lower to that prescribed for the offense (or
prisin correccional medium) (People vs. Gonzales, 73 Phil., 549).
The penalty imposed by the lower court (imprisonment for not less than two (2) years, four (4) months and one (1) day of prisin correccional and not more than
eight (8) years and one (1) day of prisin mayor), being in accordance with law, is affirmed. Costs against appellant.
So ordered.
Pars, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcin, and Endencia, JJ., concur.
Judgment affirmed.
-------------------------------------- People vs. Bustamante, 105 Phil. 64, No. L-11598 January 27, 1959
Rivera vs. People
G.R. No. 138553. June 30, 2005.*
ENRIQUE TOTOY RIVERA Y DE GUZMAN petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
Criminal Law; Direct Assault; Two ways of committing the crime of direct assault.Direct assault, a crime against public order, may be committed in two ways:
first, by any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purposes enumerated in defining
the crimes of rebellion and sedition; and second, by any person or persons who, without a public uprising, shall attack, employ force, or seriously intimidate or
resist any person in authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance.
Same; Same; Factors which aggravate the second mode of committing assault.Petitioners case falls under the second mode, which is the more common
form of assault and is aggravated when: (a) the assault is committed with a weapon; or (b) when the offender is a public officer or employee; or (c) when the
offender lays hand upon a person in authority.
Same; Same; Evidence; Witnesses; The failure of a witness to recall each and every detail of an occurrence may even serve to strengthen rather than weaken
his credibility because it erases any suspicion of a coached or rehearsed testimony.For sure, far from adversely affecting Lt. Leygos credibility, his failure to
recall every minute detail of what transpired even fortifies it. We have thus held that the failure of a witness to recall each and every detail of an occurrence may
even serve to strengthen rather than weaken his credibility because it erases any suspicion of a coached or rehearsed testimony. What is vital in Lt. Leygos
testimony is the fact that petitioner punched him on his face, about which he was steadfast and unflinching.
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* THIRD DIVISION.
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Rivera vs. People
Same; Same; Same; The assessment of the credibility of witnesses and their testimonies is best undertaken by the trial court.This Court has said time and
again that the assessment of the credibility of witnesses and their testimonies is best undertaken by the trial court, what with reality that it has the opportunity to
observe the witnesses first-hand and to note their demeanor, conduct, and attitude while testifying. Its findings on such matters, absent, as here, of any
arbitrariness or oversight of facts or circumstances of weight and substance, are final and conclusive upon this Court and will not to be disturbed on appeal.
Same; Same; Same; Well-established is the rule in this jurisdiction that the testimony of a single witness if straightforward and categorical is sufficient to convict;
Corroborative evidence is deemed necessary only when there are reasons to warrant the suspicion that the witness falsified the truth or that his observations
had been inaccurate.Assuming, in gratia argumente, that Lt. Leygos testimony was not corroborated by the two (2) other prosecution witnesses during their
cross-examinations, still the day cannot be saved for the petitioner. Well-settled is the rule in this jurisdiction that the testimony of a single witness, if
straightforward and categorical, is sufficient to convict. After all, witnesses are weighed, not numbered, and evidence are assessed in terms of quality, not
quantity. It is not uncommon, then, to reach a conclusion of guilt on the basis of the testimony of a lone witness. Corroborative evidence is deemed necessary
only when there are reasons to warrant the suspicion that the witness falsified the truth or that his observations had been inaccurate. Unfortunately for the
petitioner, the trial court found nothing to indicate that Lt. Leygo falsified the truth or that his observations had been inaccurate.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Ismael S. Crisanto for petitioner.
352
352
SUPREME COURT REPORTS ANNOTATED
Rivera vs. People
GARCIA, J.:
Assailed and sought to be set aside in this petition for review on certiorari are the October 16, 1998 decision1 and April 5, 1999 resolution2 of the Court of
Appeals in CA-G.R. CR No. 17284, which respectively affirmed in toto an earlier decision of the Regional Trial Court of La Trinidad, Benguet convicting herein
petitioner Enrique Totoy Rivera of the crime of direct assault, and denied petitioners motion for reconsideration.
On May 6, 1993, in the Regional Trial Court at La Trinidad, Benguet an information3 for direct assault was filed against petitioner, allegedly committed, as
follows:
That on or about the 20th day of March, 1993, at Tomay, Shilan, Municipality of La Trinidad, Province of Benguet, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously attack, employ force and seriously resist one Lt. EDWARD M.
LEYGO, knowing him to be a policeman, by then and there challenging the latter to a fistfight and thereafter grappling and hitting the said policeman on his face,
thus injuring him in the process while the latter was actually engaged in the performance of his official duties.
Contrary to law.
On arraignment, petitioner entered a plea of Not Guilty. Thereafter, trial ensued.
To prove its case, the prosecution presented in evidence the testimonies of the victim himself, Lt. Edward Leygo, and the two alleged eyewitnesses to the
incident, SPO1 Jose Bangcado
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1 Penned by Associate Justice Rodrigo V. Cosico and concurred in by Associate Justices Artemon D. Luna (ret.) and Delilah Vidallon-Magtolis; Rollo, pp. 42-53.
2 Rollo, p. 55.
3 Original Record, pp. 4-5.
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Rivera vs. People
and Brenda Dup-et. For its part, the defense presented the petitioner himself and one Alfredo Castro.
As summarized by the trial court and adopted by the Court of Appeals in the decision herein assailed, the Peoples version4 is, as follows:
On March 20, 1993 at around 8:00 oclock in the evening, Police Inspector Edward M. Leygo, Deputy Chief of Police for Operation and Patrol of the La Trinidad
Police Station, La Trinidad, Benguet and SPO1 Joseph Basquial were conducting routinary patrol on board a police car somewhere in Shilan, La Trinidad,
Benguet when they came upon a truck unloading sacks of chicken dung at the stall of accused Enrique Totoy Rivera which was located along the Halsema
Highway at Shilan, La Trinidad, Benguet. Inspector Leygo advised the driver to stop unloading the manure as it violates La Trinidad Municipal Ordinance No. I-
91 (Exhibit C) which prohibits, among others, the loading and unloading of chicken manure along the sidewalks or road shoulders or within 15 meters from the
center of the Halsema Highway located at La Trinidad, Benguet. The driver complied with the police directive. The policemen then escorted the truck back to
Poblacion, La Trinidad, Benguet and proceeded to the police headquarters.
Not long after, SPO1 Jose Bangcado and SPO1 Rivera Dayap, members of the La Trinidad Police under Inspector Leygo were conducting patrol aboard a
police car somewhere at Km. 6, La Trinidad, Benguet when they observed a truck loaded with chicken dung proceeding towards Shilan, La Trinidad, Benguet.
Having in mind the instructions of La Trinidad Mayor Edna C. Tabanda and their Commanding Officer Inspector Leygo to Implement Ordinance No. I-91, the two
policemen followed and stopped the truck at Cruz, La Trinidad, Benguet. Immediately they called Inspector Leygo on the radio and informed him that they
stopped a truck carrying chicken dung. Inspector Leygo ordered them to restrain the truck, as he would be proceeding to the area.
Knowing that the truck being restrained by the two policemen was the same truck which they had escorted earlier from Shilan, La Trinidad, Benguet, Inspector
Leygo felt ignored and insulted. He
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4 Rollo, pp. 43-45.
354
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Rivera vs. People
immediately called SPO4 Justino Tiwtiwa, SPO1 Baldwin Ngolab and SPO1 Joseph Basquial and the group sped to Cruz, La Trinidad, Benguet.
Meanwhile, back at Cruz, La Trinidad, Benguet, the accused arrived before the group of Inspector Leygo did and ordered the driver not to obey the policemen
but instead obey him, as he (accused) was the boss. The truck driver followed the accuseds order and drove the truck towards Shilan, La Trinidad, Benguet
with the accused following closely behind in his vehicle.
Inspector Leygo and his group arrived in time to see the truck pulling away and so they gave chase. The police were able to overtake and stop the truck at
Dengsi, Tomay, La Trinidad, Benguet. Inspector Leygo confronted the truck driver and asked him why he still insisted on proceeding to Shilan to unload chicken
manure despite the fact that he was ordered to go back earlier in the evening. The truck driver stated that he was just following the orders of the accused.
Immediately, Inspector Leygo turned around to see the accused who had at that time alighted from his vehicle behind the truck. Inspector Leygo asked the
accused why he insisted on defying the ban on the unloading and loading of chicken manure. Instead of answering however, the accused pointed a finger on
the policeman and uttered words like Babalian kita ng buto (Ill break your bones). Ilalampaso kita (Ill scrub you). Pulis lang kayo (you are only policemen)
and other unsavory and insulting words. Inspector Leygo who was a little bit angry warned the accused to stop uttering further insulting words and cautioned
him to take it easy and then informed him that he was being arrested for violation of the chicken dung ordinance. The accused removed his jacket, placed it
inside the vehicle, assumed a fighting stance and challenged the policeman. Inspector Leygo then approached the accused and warned him anew that he was
being arrested. The accused responded by punching Inspector Leygo on his face, particularly on his lip. The two then grappled as Inspector Leygo tried to hold
the accused. Finally, with the help of Policemen Dayap and Bongcado, the accused was subdued. The accused was then pushed into one of the police cars but
he resisted until Alfredo Castro, one of the chicken dung dealers in the area, boarded the police car to accompany him.
The accused was brought to the police headquarters where Inspector Leygo immediately called Mayor Tabanda who arrived at about 10:00 oclock that same
evening. She confronted the two pro-
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Rivera vs. People
tagonists and at the same time admonished the accused for violating Ordinance No. I-91. Mayor Tabanda then accompanied the accused and Inspector Leygo
to the Benguet General Hospital where both were examined by Dr. Antonio T. Carino. In the medico-legal certificate (Exhibit A) of Inspector Leygo, his injury
described as contusion with 0.5 laceration, upper lip, left side with healing period from 5 to 7 days. Subsequently, this present case was filed against the
accused.
Reproduced from the same decision of the appellate court, the defenses version5 runs:
At about 8:00 oclock in the evening of March 20, 1993, while the accused was at the Trading Post at Km. 5, La Trinidad, Benguet, the driver reported to him that
he was prevented by the police from unloading chicken manure at Shilan, La Trinidad, Benguet. The accused reminded the driver that he should have brought
the chicken manure to Acop, Tublay, Benguet where dealers sell it when prevented from unloading within the municipality of La Trinidad, Benguet. As it would be
more expensive to return the chicken dung to Batangas where it came from, the accused told the driver to bring the chicken dung to Acop, Tublay, Benguet. The
driver expressed his fear that the police might stop him along the way and so the accused ordered the driver to proceed and gave him the assurance that he
(accused) would follow later.
The truck then proceeded as instructed and the accused following after a short while. Arriving at Cruz, La Trinidad, Benguet, the accused noticed that the truck
was stopped at the side of the road while a police vehicle and three policemen were across the road. Thinking that the policemen were there trying to extort
money from the driver, the accused told the truck driver to proceed. The truck driver complied and the accused tailed along.
When the truck and the accused reached Dengsi, Tomay, La Trinidad, Benguet, he heard a police siren from behind. Immediately, a police vehicle overtook the
truck, another police vehicle was running along side the accuseds vehicle and a third police vehicle was right behind them. Thus, the truck and the accused had
no recourse but to stop.
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5 Rollo, pp. 46-47.
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Rivera vs. People
Inspector Leygo alighted from one of the police vehicles and angrily uttered so many words at the accused. The policeman then held the collar of accuseds
jacket and forced the latter to get out of his vehicle while shouting Ang tigas ng ulo mo. Sige, bumunot ka. (You are very stubborn. Go ahead, draw your gun.)
The accused explained that he had no gun to draw while removing his jacket and raising his hands to show that there was no gun on his body. Inspector Leygo
then held the left hand of the accused and tried to put handcuffs on him. The accused tried to resist, pleading that he had no fault and at the same time asking
what infraction of law he committed. Inspector Leygo answered by uttering insulting words and pointing his left forefinger on the accuseds face while his right
hand was poking a gun on the accused. The accused noticed that the policeman smelled of liquor.
A crowd started to gather around the scene. Sensing that the onlookers were on his side, the accused stated that he was going to get his camera inside his
vehicle. As he was opening the door, Inspector Leygo suddenly slapped and boxed him in the stomach causing the accused to feel dizzy. This assault
weakened him and so he did not resist when the police pushed him inside the police vehicle. Inspector Leygo then ordered his men to bring the accused to the
police headquarters. The accused recognized Alfredo Castro among the onlookers and because he (accused) knew him to be one of the chicken dung dealers,
asked him (Castro) to accompany him to the police headquarters for fear that something might happen.
At the police station, the accused suggested that Inspector Leygo should undergo medical examination to determine if the policeman was positive of alcoholic
breath. The accused, however, was examined ahead and was issued a medical certificate (Exhibit 4) which described his injury as erythema, lip left side face
and contusion-midepigastric area. The healing period is from 3 to 5 days. With him sustaining this injury, the accused now wonders why this charge was filed
against him.
After weighing the parties respective versions of the incident, the trial court found that of the People more credible. Accordingly, in its decision of April 22,
1994,6 it convicted
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6 Rollo, p. 40.
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Rivera vs. People
petitioner of the crime of direct assault and sentenced him, thus:
WHEREFORE, the guilt of the accused having been proven beyond reasonable doubt, the Court hereby renders judgment finding the accused Enrique Totoy
Rivera GUILTY and sentences him to suffer an indeterminate penalty of Four (4) Months and One (1) Day of arresto mayor as MINIMUM to One (1) Year, One
(1) Month and Eleven (11) Days of prision correccional as MAXIMUM. He is likewise ordered to pay a fine of FIVE HUNDRED PESOS (P500.00) and to pay the
costs.
SO ORDERED.
With his motion for reconsideration having been denied by the trial court, petitioner then went on appeal to the Court of Appeals whereat his recourse was
docketed as CA-G.R. CR No. 17284.
As stated at the outset hereof, the appellate court, in its decision7 of October 16, 1998, affirmed in toto that of the trial court, to wit:
WHEREFORE, premises considered the decision appealed from is hereby affirmed in toto.
SO ORDERED.
and denied petitioners motion for reconsideration in its resolution of April 5, 1999.8
Hence, this petition for review on certiorari, submitting for our consideration the principal issue of whether or not the Court of Appeals erred in affirming the
judgment of conviction rendered by the trial court.
We AFFIRM.
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7 Rollo, pp. 42-53.
8 Rollo, p. 55.
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Rivera vs. People
Direct assault, a crime against public order, may be committed in two ways: first, by any person or persons who, without a public uprising, shall employ force or
intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition; and second, by any person or persons who,
without a public uprising, shall attack, employ force, or seriously intimidate or resist any person in authority or any of his agents, while engaged in the
performance of official duties, or on occasion of such performance.9
Unquestionably, petitioners case falls under the second mode, which is the more common form of assault and is aggravated when: (a) the assault is committed
with a weapon; or (b) when the offender is a public officer or employee; or (c) when the offender lays hand upon a person in authority.10
In this recourse, petitioner argues that the appellate court, like the trial court, erred in finding the testimony of complainant Lt. Leygo as clear and convincing. In
an attempt to impugn the latters credibility, petitioner contends that Lt. Leygo was mumbling while giving his testimony, adding that the latter failed to identify
which of his (petitioner) hands was used and the precise distance between them when he punched the police lieutenant.
Admittedly, the record shows that the trial judge had to call Lt. Leygos attention for testifying in such a low voice while on the witness box. Evidently, however,
this did not prevent the trial court into believing his testimony and from according it full faith and credit. As it is, the witness was able to narrate and communicate
the events that transpired. Both the trial court and the Court of Appeals found the witness to have clearly and adequately recounted how the incident happened,
and we find no valid reason to discredit the truth and veracity of his narration. We quote:
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9 Article 148 of the Revised Penal Code.
10 People v. Abalos, 328 Phil. 24; 258 SCRA 523 (1996), citing Aquino, R. C., The Revised Penal Code, Vol. II, 1987 ed., p. 146.
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Rivera vs. People
Now, you said that Mr. Rivera faced you, when he faced you after he removed his jacket what did you do?
He positioned himself in a fighting stance, sir.
What do you mean in the fighting stance?
He raised his fist. (Witness raised his hands with his clenched fist in front of him).
How about you, what did you do when Mr. Rivera did that?
I informed him that I am arresting him.
How far were you when he faced you at first?
At first before I went near him is about 6 feet, sir.
Now, you said you approached him, is that correct?
Yes, sir.
What did you do when you approached him?
I told him that I am arresting him, sir.
And what was his response?
He punched me at my face, sir.
You said he punched you, with what hand did Mr. Rivera punch you?
A
I think it is his left hand, sir.11
Nor is Lt. Leygos credibility any less diminished by the circumstance that he failed to categorically identify which of petitioners hands was used in punching
him, and the exact distance between them at that time. In all likelihood, this police officer was not expecting a physical attack by the petitioner as he was just
confronting the latter about the prohibited unloading of chicken dung when petitioner laid hand on him. Under this scenario, any person, like Lt. Leygo, cannot
be expected to remember every single detail of the incident with perfect recall.12 For sure, far from adversely affecting Lt. Leygos credibility, his failure to recall
every minute detail of
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11 TSN, September 9, 1993, p. 12.
12 People vs. Tejero, G.R. No. 135050, 19 April 2002, 381 SCRA 382.
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Rivera vs. People
what transpired even fortifies it. We have thus held that the failure of a witness to recall each and every detail of an occurrence may even serve to strengthen
rather than weaken his credibility because it erases any suspicion of a coached or rehearsed testimony.13 What is vital in Lt. Leygos testimony is the fact that
petitioner punched him on his face, about which he was steadfast and unflinching.
In any event, this Court has said time and again that the assessment of the credibility of witnesses and their testimonies is best undertaken by the trial court,
what with reality that it has the opportunity to observe the witnesses first-hand and to note their demeanor, conduct, and attitude while testifying. Its findings on
such matters, absent, as here, of any arbitrariness or oversight of facts or circumstances of weight and substance, are final and conclusive upon this Court and
will not to be disturbed on appeal.14
Petitioner also asserts that the testimonies of prosecution witnesses SPO1 Jose Bangcado and Brenda Dup-et did not corroborate Lt. Leygos testimony. For,
while SPO1 Bangcado merely testified during direct examination that petitioner punched Lt. Leygo, this witness failed to reiterate said testimony during cross-
examination. As regards prosecution witness Brenda Dup-et, petitioner alleged that this witness never testified that petitioner boxed Lt. Leygo.
The imputed shortcomings in the testimonies of said two (2) prosecution witnesses are not of their own making. A witness is supposed to confine his answers
only to questions propounded of him. Here, the defense counsel focused his line of questioning on what the two protagonists were doing immediately prior to
the punching incident, and the answer correctly received by counsel was that both petitioner and Leygo were pushing each other. There is no showing that
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13 Tapdasan, Jr. vs. People, G.R. No. 141344, 21 Nov. 2002, 392 SCRA 335, citing People vs. Garigadi, 317 SCRA 399 (1999).
14 People vs. Ciron, Jr., 429 Phil. 106; 379 SCRA 376 (2002).
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counsel asked the witness as to what happened after the pushing incident, as what the public prosecutor did of SPO1 Bangcado during the latters direct
examination, to wit:
PROS. BOTENGAN:
And what happened when they faced each other?
Totoy Rivera was shouting at Lt. Leygo, sir.
What was he shouting?

A
Bakit ninyo ako tinutugis, hindi ako criminal. Magbabayad kayo rito. Hindi ninyo ako kaya, pulis lang kayo. And some other words but I cannot remember them
all, sir.
What else, if any, did he say?
COURT:
He said he cannot remember the other words.
WITNESS:
There is one thing more, sir. Ilalampaso kita. Babalian kita ng buto. And others, sir.
PROS. BOTENGAN:
To whom was Mr. Rivera saying this?
To Lt. Leygo, sir.
What was Mr. Rivera doing when he said these?
He was pointing to the face of Lt. Leygo and they are becoming closer and closer with each other, sir.
At that time, what was Lt. Leygo doing?
What I saw was they were pushing to one another and after that Totoy Rivera boxed Lt. Leygo, sir.
You said they were pushing one another, what part of their body were they holding?
At the breast, sir.
So each one was holding each others breast, is that what you mean?
Yes, sir.
How long did they push each other?
Seven to ten seconds, sir.
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Rivera vs. People

Q
And was Lt. Leygo saying anything?
He was trying to arrest Totoy Rivera, sir.
You said that he was trying to arrest Totoy Rivera, did you hear him if he says anything?
He was convincing Totoy Rivera to go to the Municipal Hall, sir.
You said Totoy Rivera boxed Lt. Leygo, what part of the body of Lt. Leygo was hit?
His face, sir.
What part of his face?
Here, sir. (Witness referring to his lower lip. Witness is holding his lower lip).
What happened when Lt. Leygo was hit?
He ordered us to arrest Totoy Rivera, so we were able to subdue Totoy Rivera and placed him in the car, sir.15
But even assuming, in gratia argumente, that Lt. Leygos testimony was not corroborated by the two (2) other prosecution witnesses during their cross-
examinations, still the day cannot be saved for the petitioner. Well-settled is the rule in this jurisdiction that the testimony of a single witness, if straightforward
and categorical, is sufficient to convict. After all, witnesses are weighed, not numbered, and evidence are assessed in terms of quality, not quantity. It is not
uncommon, then, to reach a conclusion of guilt on the basis of the testimony of a lone witness. Corroborative evidence is deemed necessary only when there
are reasons to warrant the suspicion that the witness falsified the truth or that his observations had been inaccurate.16 Unfortunately for the petitioner, the trial
court found nothing to indicate that Lt. Leygo falsified the truth or that his observations had been inaccurate.
_______________
15 TSN dated September 9, 1993, pp. 32-33.
16 People vs. Manalad, G.R. No. 128593, 387 SCRA 263 (2002), citing People vs. Cabote, G.R. No. 136143, 369 SCRA 65 (2001).
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Rivera vs. People
Petitioner theorizes that he could not have hit Lt. Leygo, what with the circumstance that his co-policemen were present at the scene of the incident, and he
finds it unusual that none of them retaliated if he really hit Lt. Leygo.
We are not persuaded. The evidence on record clearly bears out that it was Lt. Leygo who was attacked by petitioner, not the other way around, as petitioner
would want us to believe. Both the witnesses for the prosecution and the defense are one in saying that it was only petitioner who was in confrontation with Lt.
Leygo. Evidently, petitioners anger started to burst when the truck driver reported to him that Lt. Leygo prohibited the unloading of the chicken dung and
ordered him to return, such that when the same delivery truck was again intercepted by Lt. Leygos group, petitioners anger was too much for him to contain.
We quote with approval what the trial court has said in its decision:
The accused, however, denies that he ever laid hands on the cop. But the bigger question is, how then did the policeman sustain his injuries? It is highly
improbable, if not absurd, for the policeman to inflict it on himself. It is also very unlikely that his co-policemen would punch him just to make it appear that the
accused did it. The accused admits of being at the place. He admits having been confronted by the policeman but he denies that he ever lifted a finger against
the policeman. Yet all the witnesses both for the prosecution and the defense are in accord in saying that it was only the accused who was in confrontation with
the policeman. The only logical conclusion that can be derived from this is that it is indeed the accused who punched the policeman. Evidence to be believed
must not only proceed from the mouth of the credible witness but it must be credible in itself. No better test has yet been found to measure the value of the
testimony of a witness than its conformity to the knowledge and common experience of mankind (People vs. Maspil, Jr., 186 SCRA 751).
That the other police officers did not retaliate is no basis for us to share petitioners submission that Lt. Leygo was the aggressor. In the nature of things, they
naturally reacted the
364
364
Rivera vs. People
way they should, i.e. placed petitioner under arrest when ordered by Lt. Leygo.
Petitioner next contends that Lt. Leygo was not in the performance of his official duties as a police officer and as Deputy Chief of Police for Operation and Patrol
at the time he was attacked.
Again, We disagree.
It is a matter of record that at the time of the assault, Lt. Leygo was engaged in the actual performance of his official duties. He was wearing the designated
police uniform and was on board a police car conducting a routinary patrol when he first came upon the truck unloading chicken manure. Because the unloading
of chicken dung was a violation of La Trinidad Municipal Ordinance No. 1-91, the lieutenant ordered the truck driver to return from where he came, but petitioner,
in defiance of such lawful order, commanded the truck driver to return to Shilan, the place where the truck was first intercepted, and on being informed that the
same truck had returned, the lieutenant had every reason to assume it did return for the purpose of unloading its cargo of chicken dung, thus stopped it from
doing so.
Under the circumstances, it simply defies reason to argue that Lt. Leygo was not in the performance of his lawful duties as a police officer when the assault
upon him was perpetrated by the petitioner.
Nor are we impressed by petitioners submission that the prosecutions failure to present the doctor, who examined Lt. Leygo, proved disastrous to the Peoples
case, arguing that the alleged injury of Lt. Leygo cannot be proved without the testimony of the attending physician.
That Dr. Antonio T. Carino did not testify on the medical certificate he issued is of no moment. If ever, the medical certificate is only corroborative in character
and is not an indispensable element of the crime of direct assault filed against petitioner. The unequivocal piece of evidence against
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VOL. 462, JUNE 30, 2005
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Rivera vs. People
petitioner is no less Lt. Leygos credible and consistent testimony that he was punched on his face by the petitioner.
Lastly, petitioner puts the Court of Appeals to task for sustaining the trial courts observation that he exuded an aura of arrogance and defiance of authorities.
We have consistently ruled that the trial court judge is in the best of position to see and observe the demeanor, actuation and countenance of a witness, matters
which are not normally expressed in the transcripts of his testimony. We see no reason, therefore, to disturb the following observations of the trial court in its
decision:
The demeanor of the accused on the witness stand also shows that he is the kind who is impatient with authority. His manner of answering questions bespeaks
of one who has trouble abiding with authority. He portrayed a very aggressive manner and his answers were always on the defensive as if he had every right in
this world to do and say whatever he wanted to. Over all, he exuded an aura of arrogance and defiance of authority.
In closing, let it be noted that the attention of this Court has not been called to of any ulterior or improper motive on the part of the prosecution witnesses to
falsely testify against petitioner. Absence such a motive, the presumption is that they were not so moved, and their testimonies are entitled to full faith and
credit.17
WHEREFORE, the petition is hereby DENIED, and the assailed decision and resolution of the Court of Appeals AFFIRMED in toto.
Costs against petitioner.
SO ORDERED.
Panganiban (Chairman), Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.
_______________
17 People vs. Zuniega, G.R. No. 126117, 352 SCRA 403 [2001].
366
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Murao vs. People
Petition denied, assailed decision and resolution affirmed.
Note.A truth-telling witness is not always expected to give an error-free testimony, considering the lapse of time and the treachery of the human memory.
(People vs. Perez, 417 SCRA 449 [2003])
o0o Rivera vs. People, 462 SCRA 350, G.R. No. 138553 June 30, 2005
THE UNITED STATES, plaintiff and appellee, vs. ISAAC SAMONTE, defendant and appellant.
1.PEACE OFFICERS; RIGHT TO ARREST WITHOUT WARRANT.Any officer charged with the preservation of the public peace may arrest, without a warrant,
any person who is committing, or has committed, a breach of the peace in his presence. (3 Cyc., 881; Carolina vs. McAfee, 10 L. R. A., 607; Commonwealth vs.
Tobin, 11 Am. Rep,, 375; People vs. Rounds, 35 N. W., 77; Douglas vs. Barber, 28 Atl., 805.)
517
VOL. 16, SEPTEMBER 6, 1910.
517
United States vs. Samonte.
2.ID.; ID.; "IN THE PRESENCE OF WITHIN THE VIEW" CONTRUCTED An offense is committed in the presence or within the view of an officer, within the
meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbance created thereby
and proceeds at once to the scene thereof; or the offense is continuing, or has not been consummated, at the time the arrest is made. (3 Cyc., 886; Ramsey vs.
State, 17 S. E., 613; Dilger vs. Com., 11 S. W., 651; State vs. McAfee, 12 S. E., 435; State vs. Williams, 15 S. E., 554; Hawkins vs. Lutton, 70 N. W., 483.)
3.ID.; RESISTING AN OFFICER; ATTEMPT AGAINST THE AUTHORITIES.Any person who attacks the authorities of the Government, or their agents, or
employs force against them, or gravely intimidates them, or offers an equally grave resistance while they are discharging the functions of their office or on the
occasion thereof, is guilty of an attempt against the authorities. (Arts. 249, 250, Penal Code.)
APPEAL from a judgment of the Court of First Instance of Tayabas. Nepomuceno, J.
Godofredo Reyes, for appellant.
Attorney-General Villamor, for appellee.
TRENT, J.:
The defendant, Isaac Samonte, was tried in the Court of First Instance of the Province of Tayabas on a charge of criminal attempt against an agent of the
authorities, and sentenced to one year eight months and twenty-one days of prisin correccional, to pay a fine of P65, in case of insolvency to suffer the
corresponding subsidiary imprisonment, to the accessory penalties provided in article 61 of the Penal Code, and to pay the costs. He appealed to this court.
Counsel for appellant insists, first, that the prosecution has failed to establish beyond a reasonable doubt that the policeman, Gregorio Glindo, attempted to
arrest the accused in Verdades Street, the place where the trouble occurred; and, second, that if said policeman did attempt to arrest the defendant at this place
he, not having a judicial warrant, was not, under the circumstances, authorized to make the arrest which he attempted to make.
518
518
About 8 o'clock on the night of September 6, 1908, the appellant, Isaac Samonte, and Basilio Rabe were together in the house of one Demetrio Pandeio in the
barrio of Macalalong, jurisdiction of Pitogo, Province of Tayabas. They both left this house and met shortly afterwards in the street (Verdades) in said barrio. On
meeting there they became engaged in a quarrel, the appellant knocking or pushing Rabe down, then proceeded to maltreat him. At this moment Rabe called
"police! police!" Gregorio Glindo, a municipal policeman of Pitogo, being on patrol duty that night in said barrio, hearing these words went to the scene, arriving
just as the offended party was getting up, and attempted to arrest the appellant, saying to him: "In the name of the United States, don't move." The appellant, on
seeing the policeman and hearing this command, said: "Don't come near, because I will take your life." The policeman continued toward the appellant and when
very near him the appellant struck at the policeman with a knife. On account of this resistance the policeman could not arrest the appellant at that time, so he
went immediately to the house of the councilman of that barrio, Demetrio Pandeio, and reported the matter. Pandeio ordered him to arrest the appellant. He
returned to obey this order, being followed by Pandeio. They found the appellant in a place called Mutingbayan. The policeman attempted to take hold of the
appellant, but he resisted, striking at the policeman again with his knife. The councilman then ordered the appellant to submit himself, and on receiving this
order the appellant said: "I do not recognize anyone," and struck at the councilman with the knife.
The appellant was not arrested on that night on account of this resistance. He did not lay hands on or touch with his knife either the policeman or the
councilman, but he did refuse to submit himself to the authorities, and resisted arrest. The policeman did not see the appellant knock the priest down, neither did
he see him kick the said priest, but he heard the cries of the priest calling for help, saying "police! police!" and when he arrived on the scene the
519
VOL. 16, SEPTEMBER 6, 1910.
519
priest was just getting up and freeing himself from the appellant. When the policeman heard these cries for help he was only a very short distancesome 6 or 8
brazasaway, and when he arrived the trouble had not terminated, although no active fighting took place after his arrival. Under these facts and circumstances
it was the duty of this police officer to stop this disturbance by placing the defendant under arrest.
Any officer charged with the preservation of the public peace may arrest, without a warrant, any person who is committing, or has committed, a breach of the
peace in his presence. (3 Cyc., 881; Carolina vs. McAfee, 10 L. R. A., 607; Commonwealth vs. Tobin, 11 Am. Rep., 375; People vs. Rounds, 35 N. W., 77; and
Douglas vs. Barber, 28 Atl. Rep., 805.)
An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer
sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof; or the offense is continuing, or
has not been consummated, at the time the arrest is made. (3 Cyc., 886; Ramsey vs. State, 17 S. E., 613; Dilger vs. Com., 11 S. W., 651; State vs. McAfee, 12
S. E., 435; State vs. Williams, 15 S. E., 554; and Hawkins vs. Lutton, 70 N. W., 483.)
In the case at bar Gregorio Glindo, being a peace officer, not only had authority to arrest the defendant at that time, but it was. his duty to do so, he having heard
the priest call for help and having arrived on the scene before the disturbance had finally ended.
Article 249 of the Penal Code provides that the following commit criminal attempt:
* * * * * * *
"2. Those who attack the authorities or their agents, or employ force against them, or gravely intimidate them, or offer an equally grave resistance while they are
discharging the f unctions of their office or on the occasion thereof."
520
520
United States vs. Estraa.
Article 250 of the same code fixes the penalty to be imposed for those guilty of an attempt against the authorities or their agents, as provided in the above
article.
The accused in this case, after an attempt had been made to arrest him by a duly authorized police officer in the discharge of his duty as such, offered grave
resistance by refusing to submit himself to arrest and by striking at the policeman with a knife, thereby attempting a personal injury. Although the policeman was
not wounded or touched by the accused, these facts do not relieve him from criminal responsibility.
The penalty imposed by the court below being in accordance with the law and the proofs presented, the same is hereby affirmed, with costs against the
appellant. So ordered.
Arellano, C. J., Torres, Johnson, and Moreland, JJ., concur.
Judgment affirmed.
_______________ United States vs. Samonte., 16 Phil. 516, No. 5649 September 6, 1910
THE PEOPLE OF THE PHILIPPINES, plaintiff and appellant, vs. FERNANDO CARPIZO, defendant and appellee.
1.CRIMINAL LAW AND PROCEDURE; ASSAULT UPON AN AGENT OF AUTHORITY; CLERK IN PROVINCIAL AUDITOR'S OFFICE, NOT PERSON IN
AUTHORITY OR AGENT OF PERSON IN AUTHORITY.A mere clerk in the provincial auditor's office is not a person in authority or an agent of a person in
authority.
2.ID.; ID.; ID.; INFORMATION, FUNCTIONS OF ALLEGED AGENT OF PERSON IN AUTHORITY TO BE SHOWN IN.The functions that bring an alleged
person under the definition of an agent of a person in authority must be clearly shown in the information. Merely to say that a clerk is an agent of a person in
authority is a conclusion of law. Jurisdictional facts must be alleged as well as proved. Court jurisdiction is not made to depend on what might show up in the
course of the trial.
APPEAL from an order of the Court of First Instance of Sulu. Villalobos, J.
Assistant Solicitor General Ruperto Kapunan, jr. and Solicitor Manuel Tomacruz for appellant.
Diosdado Pion and Paulino J. Sevilla for appellee.
TUASON, J.:
This is an appeal from an order of the Court of First Instance of Sulu dismissing an inf ormation f or assault upon an agent of authority with slight physical
injuries, on a
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VOL. 80, FEBRUARY 17, 1948
235
People vs. Carpizo
motion to quash based on the ground that the facts alleged in the said information do not constitute the crime charged.
The information recites as follows:
"That on or about the 29th day of April, 1946, in the municipality of Jolo, Province of Sulu, Philippines, and within the jurisdiction of this Court, the said accused
being the husband of Mrs. Martina Carpizo, the creditor of provincial voucher No. A-2250, which voucher is on pre-audit in the possession of Eutiquio de la
Victoria, clerk, duly appointed in the office of the Provincial Auditor of Sulu, and while the said Eutiquio de la Victoria was in the point of writing on the typewriter
the tentative suspension of said voucher No. A-2250, for being defective, did then and there wilfully, unlawfully and criminally attacked the said Eutiquio de la
Victoria and took hold of his neck with his left hand and at the same time inflicted upon him a fistic blow on his left cheek which produced a contusion thereon
and scratches on the left arm, which injuries have required and will require medical attendance for a period of four days and have incapacitated and will
incapacitate him in the customary performance of his official duties as such clerk for the same period of time."
The motion to quash is well taken. The alleged victim of the attack, a mere clerk in the provincial auditor's office, is not a person in authority or an agent of a
person in authority. A person in authority, in the words of article 152 of the Revised Penal Code, is "any person directly vested with jurisdiction, whether as an
individual or as a member of some court or governmental corporation, board or commission;" while an agent of a person in authority is one who, by direct
provisions of law, or by appointment by competent authority, is charged with the maintenance of public order and the protection and security of life and property,
or who comes to the aid of a person in authority. (U. S. vs. Fortaleza, 12 Phil., 472.)
Even if, as the Solicitor General says, it be possible that this particular clerk might be clothed with functions that bring him under the above definition of an agent
of a person in authority, still such f unctions must be clearly shown in the information. Merely to say that a clerk is an agent of a person in authority is a
conclusion of law. Jurisdictional facts must be alleged if courts are to entertain ju-
236
236
Andal vs. Tan
risdiction. Court jurisdiction is not made to depend on what might turn up in the course of the trial.
With the elimination of the charge for assault, the remaining offense does not fall within the original jurisdiction of the Court of First Instance. The offense of
slight physical injuries, formerly a mere misdemeanor, is, upon the allegations of the information, punishable with arresto menor.
The order of the lower court granting the motion to quash is affirmed.
Pars, Perfecto, and Briones, JJ., concur.
Order affirmed.
_____________ People vs. Carpizo, 80 Phil., 234, No. L-1424 February 17, 1948
People vs. Benitez
[No. 48396.September 11, 1942]
The People of the Philippines, plaintiff and appellee, vs. Felix Benitez, accused and appellant.
1.Criminal Law and Procedure; Assault upon a Person in Authority; A Division Superintendent of Schools as a Person in Authority.Since, under the law
(section 917 of the Revised Administrative Code), a division superintendent of schools is given the power of general superintendence over schools and school
interests in his division, with the right to appoint municipal school teachers and to fix their salaries, and further, since education is a state function and public
policy demands an adequate protection of those engaged in the performance of this commission, Held: That a division superintendent of schools is a person in
authority within the meaning of article 148, in connection with article 152, of the Revised Penal Code.
2.Id.; Id.; Id.; Complex Crime; Factual Findings of Trial Court Are Binding upon Supreme Court.This case has been removed to this court only upon a question
of law and it is not at liberty to review the evidence presented by the parties. Accordingly, the finding of the trial court that "no injury of serious nature was
caused upon the offended party by the blow of record," cannot be disturbed. Under article 48 of the Revised Penal Code, as amended by Act No. 4000, a
complex crime is committed when a single act constitutes two of more grave or less grave felonies. In the instant case, the physical injury inflicted upon the
offended party does not appear to be a grave or less grave felony and, therefore, there is no complex crime.
APPEAL from a judgment of the Court of First Instance of Occidental Negros. Rivera, J.
Abundio Z. Arrieta and Godofredo Escalona for appellant.
Assistant Solicitor-General B. L. Reyes and Solicitor Canizares for appellee.
Moran,J.:
In the morning of October 28, 1939, while D'Artagnan Williams, Division Superintendent of Schools for Negros Occidental, was working in his office, defendant
Felix Benitez, special agent in the office of the Provincial Governor, gave the former a fist blow causing him a contusion over the mastoid bone on the left ear.
The assault appeared to have been prompted by the defendant's desire to avenge a supposed affront to the Provincial Governor by the Division Superintendent
in connection with the appointment of teachers. On an indictment for assault upon a person in authority, defendant was found guilty and sentenced to from 6
months and 1 day to 4 years, 2 months and 1 day of prisin correccional and to pay a fine of P500 with subsidary imprisonment in case of insolvency. This
judgment is the subject of review in this appeal.
The sole question here presented is whether or not a division superintendent of schools is a person in authority within the meaning of article 148, in connection
with article 152, of the Revised Penal Code. Since, under the law (section 917 of the Revised Administrative Code), a division superintendent of schools is given
the power of general superintendence over schools and school interests in his division, with the right to appoint municipal school teachers and to fix their
salaries, and further, since education is a state function and public policy demands an adequate protection of those engaged in the performance of this
commission, we believe and so hold that a division superintendent of schools should be regarded as a person in authority.
The Solicitor-General maintains that the defendant is guilty of the complex crime of assault upon a person in authority with physical injury it appearing from the
evidence that, due to the blow inflicted upon the offended party, he sustained in the left ear an injury which required more than 30 days of medical treatment.
This case has been removed to this Court only upon a question of law and we are not at liberty to review the evidence presented by the parties. Accordingly, the
finding of the trial court that "no injury of serious nature was caused upon the offended party by the blow of record," cannot now be disturbed. Under article 48 of
the Revised Penal Code, as amended by Act No. 4000, a complex crime is committed when a single act constitutes two or more grave or less grave felonies. In
the instant case, the physical injury inflicted upon the offended party does not appear to be a grave or less grave felony and, therefore, there is no complex
crime. (People vs. Refre, G. R. No. 39937 [unpublished], February 2, 1934; People vs. Acierto, 57 Phil., 614.)
The crime committed by the defendant is assault upon a person in authority, with the aggravating circumstance that the crime was committed, in the place
where the person in authority was engaged in the discharge of his duties (article 14, No. 5, Revised Penal
672
672
People vs. Benitez
Code). The penalty provided by law is prisin correccional in its medium and maximum periods and a fine not exceeding P1,000 to be imposed in its maximum
degree. Pursuant to the Indeterminate Sentence Law, the maximum of the indeterminate penalty to be imposed shall be within the maximum period of prisin
correccional in its medium and maximum periods, and the minimum shall be within the range of the penalty next lower, that is, arresto mayor in its maximum
period to prisin correccional in its minimum period which may be applied in any of its periods in the discretion of the court according to the circumstances of the
case. (See People vs. Gonzalez, G. R. No. 18293, April 21, 1942.) The minimum penalty imposed by the trial court is 6 months and 1 day of prisin correccional
and is within the range of the penalty provided by law. But the maximum imposed is 4 years, 2 months and 1 day of prisin correccional, below the range
provided by law which is from 4 years, 9 months and 11 days to 6 years.
Judgment is accordingly modified and the accused is hereby sentenced to suffer the indeterminate penalty of from 6 months and 1 day to 4 years, 9 months and
11 days of prisin correccional, to pay a fine of P500 with subsidary imprisonment in case of insolvency not exceeding one-third of the principal penalty, with
costs.
Yulo, C. J., Paras, Bocobo, and Generoso, J J., concur.
Judgment modified. People vs. Benitez, 73 Phil., 671, No. 48396 September 11, 1942
De Luna et al. vs. Linatoc
[No. 48403. October 28,1942]
Agustin de Luna et al., petitioners and appellants, vs. Jose Linatoc, respondent and appellee.
1.Appeal and Error; Inquiry by SupremeCourt into Conclusion of Fact Made by Court of Appeals.The Court of Appeals found that no deceit had been com-
mitted by appellee upon appellants. This conclusion of fact is drawn from certain facts which are either undisputed or have been clearly established by the
evidence. When may the Supreme Court review or question such deduction of fact based on uncontroverted or plain evidence? Only when reasonable men
readily agree that the inference is manifestly mistaken, absurd or impossible. If, however, fair-minded men may differ on whether or not the main conclusion of
fact is rightly drawn from the undisputed evidence, the Supreme Court should not, as a rule, inquire into the discretion exercised by the Court of Appeals. The
instant case is of the latter category, because the findings of the Court of Appeals that there has been no deceit may or may not be persuasive, according to
one's own reasoning after reading the decision and resolution of that court. It cannot be said that fair-minded men will not .differ in this case on the existence of
fraud. Held: That die Supreme Court cannot examine the question of whether or not the Court of Appeals was right when that tribunal concluded from the
uncontroverted evidence that there had been no deceit.
2.Confirmation, Ratification and Recognition Distinguished; Authority of Wife to Sell Property of the Conjugal Partnership.A careful analysis of Exhibit I reveals
that the same is neither a confirmation nor a ratification of the sales made by the wife, but is what Spanish jurists call a "reconocimiento" or recognition.
Confirmation tends to cure a vice of nullity, and ratification is for the purpose of giving authority to a person who previously acted in the name of another without
authority. Recognition, on the other hand, is merely to cure a defect of proof. In recognition, there is no vice to be remedied, such as fraud, violence or. mistake,
so the case is distinguished from confirmation. In recognition, the person acting on behalf of another is duly authorized to do so, so the situation is different from
ratification. The instant case is one of recognition because the husband was not trying to cleanse the sales of all taint, such as fraud, violence or mistake, nor
was it his purpose to confer authority to his wife, because he stated in Exhibit I: "when my wife sold said lands to J. L. she did so with my knowledge and
consent." Exhibit I merely made it appear in a deed that at the time the sales were made by the wife, she did so with his knowledge and consent. Thus the
requirement in the statute of frauds that in a sale of real property the authority of the agent should be in writing, has been complied with. Therefore, she was only
acting as his agent.
3.Id.; Id.; Illegality of Partition between Spouses Made during Marriage.However, as such agent, the wife could not sell her portions of those lands in the name
of her husband, because the partition was illegal and void, as it was made during the marriage and there was no judicial order authorizing separation of property
between the husband and the wife (art. 1432, Civil Code). Consequently, the character of these portions of lands as conjugal partnership property was never
changed. The wife could, therefore, sell and did sell, as agent of the husband, these portions as part of the conjugal partnership assets. And the wife may bind
the conjugal partnership with the consent of the husband, according to article 1416 of the Civil Code.
4.Id.; Id.; Id.; Mistake of Law Does not Render Contract Voidable.Mistake of law does not make a contract voidable, because ignorance of the law does not
excuse anyone from its compliance (art. 2, Civil Code; 8 Manresa, 646, 2d ed.). That the petitioners did not know the prohibition against partition of the conjugal
partnership property during marriage (art. 1432, Civil Code) is no valid reason why they should ask for the annulment of the sales made in Exhibits C and D and
recognized in Exhibit I.
5.Id.; Id.; Id.; No Man Can Take Advantage of His Own Wrong.Moreover, there is the time-honored legal maxim that no man can take advantage of his own
wrong. To repudiate the sales in question, petitioners are setting up their own wrongful act of partitioning their conjugal property, which violated article 1432 of
the Civil Code.
16
16
De Luna et al. vs. Linatoc
The prohibition in said article affects public policy, as it is designed to protect creditors of the conjugal partnership and other third persons. Petitioners shall
not, therefore, be allowed thus to rest their cause of action to recover the lands sold, upon the illegality of the partition which they attempted to make. Otherwise,
they would profit by their own unlawful act.
6.Id.; Id.; Id.; Article 1284 of the Civil Code.Finally, the contracts of sale in Exhibits C and D and the deed of recognition Exhibit I are susceptible of two
interpretations, one of which leads to their invalidity and illegality, and the other to their validity and legality. The former construction is that these contracts refer
to the separate property of the wife as a result of the partition, and the latter interpretation is that these deeds have as their subject matter the conjugal
partnership property. This latter interpretation is not only proper as already indicated but it is also warranted by the rules of interpretation of contracts. This
construction is, therefore, adopted, which recognizes the binding character of these three deeds. The Civil Code in article 1284 provides: "If some clause of
contracts admits of various meanings, it should be understood as that which is most adequate to make it effective."
PETITION for review on certiorari.
Decision penned by Associate Justice Jorge Bocobo.

Claro M. Recto for petitioners.
Jose Mayo Librea for respondent. De Luna et al. vs. Linatoc, 74 Phil., 15, No. 48403 October 28, 1942
THE UNITED STATES, plaintiff and appellee, vs. JOSE I. BALUYOT, defendant and appellant.
1.CRIMINAL LAW; MURDER; "ALEVOSA" [TREACHERY].The qualifying circumstance of alevosa essential to the crime of murder was found to be present
in the case at bar not only because of the sudden and unexpected manner in which the fatal assault with a deadly weapon was begun against the defenseless
victim, but also because of the peculiar conditions under which the offense was finally consummated.
2.ID. ; ID. ; "ALEVOSA" IN ACT OF CONSUMMATING CRIME.Even though a deadly attack may be begun under conditions not exhibiting the feature of
alevosa, yet if the assault is continued and the crime consummated with alevosa, such circumstance may be taken into consideration as a qualifying factor in
the offense of murder.
3.ID.; ID.; ID.; CASE AT BAR.An assault was begun suddenly and unexpectedly by the firing of a pistol by the accused at his
386
386
United States vs. Baluyot.
victim, who was unarmed. As the latter attempted to flee he was pursued by the accused and driven to take refuge in a closet, where he called aloud for help.
The accused then tried" to force open the door but was unable to do so, owing to the resistance of the deceased from within. The accused, however, judging the
position of the deceased from the cries emitted, fired his pistol in the direction thus indicated. The bullet passed through the panel of the door and, entering the
head of the deceased, produced death. Held: That the final attack was characterized by alevosa and the crime perpetrated was murder even though the attack
had not been originally begun with alevosa.
4.CRIMINAL LAW; TWO CRIMES COMMITTED IN ONE ACT; ARTICLE 89 OF THE PENAL CODE.Where the accused entered the office of the provincial
governor where the latter was engaged in the exercise of his official functions and slew him under conditions constituting murder, it is held that two crimes were
committed, namely, murder and assault upon a person in authority, and that the penalty prescribed for murder should be imposed in its maximum degree, in
accordance with section 89 of the Penal Code.
5.CRIMINAL PROCEDURE; POSTPONEMENT OF TRIAL.A trial court cannot be put in error for refusing a continuance where there is nothing to indicate that
the accused was in fact prejudiced in the making of his defense by the action taken.
6.ID.; PERSONAL QUALIFICATION OF TRIAL JUDGE.The fact that the judge before whom the accused was tried on a charge of murder had attended the
funeral of the murdered man does not render the judge incompetent to sit.
7.ID.; WlTHDRAWING PLEA OF NOT GUILTY; DEMURRER.Permission to withdraw the plea of not guilty in order to interpose a demurrer to the complaint in
a prosecution for murder is properly denied where the complaint appears to be sufficient.
8.ID.; PRODUCTION OF DOCUMENTS; STATEMENTS OF WITNESSES BEFORE FISCAL.Held: Under the circumstances stated in the opinion, that the trial
court committed no error in denying the motion of the accused to compel the production in court of written statements made by witnesses for the accusation
when examined by the provincial fiscal under the authority of section 1687 of the Administrative. Code.
9.EVIDENCE; IMPEACHMENT OF WITNESS; PROOF OF CONTRADICTORY STATEMENT.Where an attorney desires to impeach a witness of the
adversary by proof of contradictory statements, he should, in the cross-examination of such witness, lay a basis for the introduction of the contradictory proof by
asking the witness if
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he did not, at a time and place specified, make certain statements different from those testified to by him.
10.CRIMINAL PROCEDURE; ASSESSORS; CONSULTATION OF JUDGE WITH ASSESSORS.Although the record in the case at bar did not show that the
assessors who took part in hearing the case had been consulted by the trial judge, it was nevertheless held that the irregularity was immaterial. The statute does
not require that the opinions of the assessors shall be reduced to writing except where their conclusions differ from those of the judge; and, where the record is
silent, it is to be presumed that the functions of the assessors were properly performed and that they agreed with the findings of the court.
APPEAL from a judgment of the Court of First Instance of Bataan. Imperial, J.
The f acts are stated in the opinion of the court.

Filemon Sotto for appellant.
Attorney-General Paredes for appellee.
STREET, J.:
This cause has been brought to the Supreme Court upon an appeal prosecuted by Jose I. Baluyot from a judgment of the Court of First Instance of the Province
of Bataan, convicting him of the crime of murder, committed August 3, 1918, upon the person of Conrado Lerma, governor of said province, and sentencing him
to undergo the penalty of death, to indemnify the heirs of the deceased in the sum of P1,000, and to pay the costs.
At the general election which was held on June 6, 1916, Conrado Lerma was elected governor of the Province of Bataan. One of his competitors upon this
occasion was the accused, Jose I. Baluyot, who came out third in the race. As a result of this contest a feeling of personal rancor was developed in the mind of
Baluyot against his successful competitor, and during the two years which followed the accused became fully imbued with the idea that Governor Lerma was
persecuting him.
In the year 1918 Baluyot was prosecuted in the Court of First Instance of the city of Manila for the offense of
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United States vs. Baluyot,
estafa in connection with a loan of money which had been negotiated at the PhiIippine National Bank. This proceeding had been tried and in the early days of
August, 1918, was pending decision by the judge who tried the case.
Upon the organization of the National Guard, Baluyot had been commissioned as captain in that body, and owing possibly to the pendency of the accusation for
estafa and its damaging effects upon his reputation, he had been asked to resign from the position of captain in the National Guard; and although he had not
resigned when the act which gave occasion to this prosecution occurred, he had apparently been temporarily relieved from duty with that organization pending
investigation.
The misfortunes above mentioned, as well as others of a minor character, were attributed by Baluyot to the machinations of Governor Lerma, all of which served
to foment and increase his feeling of enmity towards the latter.
On August 2, 1918, the defendant left the city of Manila and went to the town of Orion, in the Province of Bataan, taking with him a revolver. Early on the
following day, August 3, he shipped to Manila from Orion a piano belonging to his wife, and at 8 a. m., went to Balanga, the capital of the Province, arriving at
the recorder's office in the provincial building at about 9 o'clock a. m., where he inquired for Governor Lerma.
He was told that the governor had not arrived, but was expected later, The accused accordingly determined to wait in the recorder's office, which served as a
sort of anteroom to the office of the governor. At about 11 o'clock a. m. the governor arrived. He and the accused greeted each other in a friendly manner by
shaking hands; and the governor, upon being informed, that Baluyot had called to confer with him, invited Baluyot into his office, Baluyot hesitated, having noted
the presence of another caller, and asked if the latter did not have a prior right to an interview. The governor said that Baluyot should enter first, which the latter
accordingly did. The governor
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the accused remained alone in the former's office for 3 or 4 minutes, whereupon it occurred to Governor Lerma that the interview might be more extended than
he had expected, and he accordingly requested that Baluyot should withdraw long enough for the governor to confer with one Antonino Aranjuez, the other
caller to whom reference has already been made. Baluyot accordingly withdrew into the recorder's office and told Aranjuez that the governor wanted to see or
talk to him. Aranjuez then went in and had a conference with the governor for a few minutes about the appointment of the former as chief of police for the
municipality of Limay. When Aranjuez came out Baluyot said that it was now his turn and again entered the governor's office.
The evidence shows that at the time Baluyot rentered the governor's office the latter was sitting behind his desk in an ordinary office chair. Baluyot approached
the desk and upon reaching a position directly in front of the governor spoke certain words which were heard, though not distinctly, by persons in the recorder's
office, Antonino Aranjuez merely heard the accused call out "governor," while Gregorio de Guzman understood Baluyot to be asking the governor for his
revolver. The accused himself testified that his reference to the revolver was intended to admonish the governor to prepare for a mortal combat and he say, s
that the words spoken were these:
"BALUYOT. It appears to me that your revolver and mine have the same calibre.
"GOVERNOR LERMA. No sir; mine is 32.

"BALUYOT. So is mine. Be prepared because one of us must die."
The accused gives a color to this conversation which seems to us somewhat unnatural, and his statement as to what occurred, especially with reference to the
length of time that elapsed after he entered the governor's office until the first shot was fired, is wholly lacking in verisimilitude. What really occurred, as the
lower court found, and as the testimony of the witnesses in the recorder's
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office shows, is that the first shot was fired within a few seconds after Baluyot rentered the governor's office and that the interval which elapsed was scarcely
more than sufficient to allow Baluyot to reach the governor's desk. The inference is conclusive that, immediately upon asking the governor about his revolver,
and discovering that he was unarmed, Baluyot drew his own revolver and fired.
In the testimony given by Baluyot himself a circumstance is -mentioned which appears to us important in this connection. He says that while he was sitting in the
recorder's office, awaiting the arrival of Governor Lerma, Paulo Venegas, a guard attached to the provincial jail, came up and after speaking in a low voice with
the recorder, entered the office of the governor and presently emerged, bringing a revolver and some cartridges. Baluyot noticed that the revolver was
discharged and remarked to the person having it in hand that an unloaded revolver is less useful even than a cane. The guard replied that he was not the
person charged with loading it, but was going to take it out to be cleaned, whereupon he disappeared carrying the revolver with him. This act of carrying away of
the revolver from Governor Lerma's office was especially noticed by Baluyot and naturally from this he must have supposed that the revolver seen by him was a
weapon commonly kept in the governor's office. The still further inference was obvious to Baluyot that the governor upon arrival would be unarmed in his office,
unless he should possibly bring a revolver upon. his person.
This circumstance shows that the words which Baluyot directed to Governor Lerma immediately before the fatal attack were intended to discover whether
Governor Lerma was in fact unarmed. Upon discovering that Governor Lerma did not have his revolver at hand, the accused at once drew his own weapon and
fired. Baluyot therefore knew Governor Lerma to be unarmed and practically defenseless, and it is plain that the attack was not begun until the assailant was
fully assured upon this point.
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The bullet first fired by Baluyot entered in the frontal region of the right shoulder blade of Governor Lerma and inflicted a wound of minor importance, passing
through the aforesaid part of the body and penetrating the back of the chair in which the governor was sitting. Passing on from the chair, the ball entered the
wall of the office building, but was so far spent that it did not penetrate deeply. Instead it merely made a circular hole in the wall of moderate depth and
rebounded, falling on the floor. The line of direction followed by the ball indicates that the accused directed the shot in somewhat downward direction and that
Governor Lerma was in all probability reclining backwards in the chair at the instant the shot struck him.
The governor immediately arose. His free action was impeded by the table in front, and by the walls of the office behind and on either side, since his table was
in a corner of his office. His exit was further obstructed by a small book stand on his immediate right. His only convenient direction of escape was, therefore, in
the direction to his left by way of the space between the left corner of his desk and the wall nearby. This direction the governor accordingly took, directing
himself towards a passageway in the wall a few feet from his desk leading into a corridor. When the governor had cleared the desk so as to leave a free space
between himself and his assailant, the distance which separated them was only a few feet. Baluyot meanwhile turned somewhat to his right and advanced
slightly in the direction taken by Governor Lerma.
The latter desiring to make good his escape, started to run in the direction aforesaid, and Baluyot, raising his revolver, again fired. The ball struck Governor
Lerma in the region of the right shoulder blade and passed through the body an inch or two from the wound made by the first shot. The firing of the second shot
was seen by Antonino Aranjuez, whose attention had been attracted by the noise of the first shot. Being then seated at a desk in the recorder's office near the
door leading into the governor's office, this witness immediately arose upon hearing the first shot, and
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having arrived at a point in the governor's office where stood a screen, occluding direct vision from the door to the governor's desk, he placed himself at the side
of the screen and was thus able to see the scene then being transacted. It was at this instant that Baluyot, with his arm extended, fired the second shot at his
fleeing victim. The governor at this moment had his right hand raised to his already wounded shoulder and was running in a direction away from his assailant
rather than towards him. Immediately upon seeing this shot fired, Aranjuez, instead of intervening to gave the governor, as would have been becoming, turned
and fled to obtain succor.
Bonifacio Mencias, the sanitary official, who examined the wounds of Governor Lerma, says that both of the first two wounds were made by bullets which
entered from the front. This is obviously true as to the first, but as to the second there seems to be room for doubt. The inspection made by the doctor may have
been superficial, and his opinion may have been partly a matter of mere inference from his information as to the general features of the tragedy. At any rate he
does not state any particulars f rom which it could clearly be discovered that the second shot entered from the front. The witness Aranjuez makes it clear that as
the matter presented itself to his eye, the governor was fleeing with his right side, rather than his front, exposed to Baluyot. This witness says that the governor's
face was turned in the direction of his flight, though he thinks the governor could have seen what Baluyot was doing. In this view the second shot should
apparently have entered f rom behind.
The point we consider of little importance, inasmuch as it is obvious that Baluyot was the aggressor throughout and that the second shot was fired at an
unarmed man whose only purpose was to effect an escape to a place of safety. Whether at the instant this shot was fired Governor Lerma may have had his
body turned so as momentarily to confront his assailant, moving away sidewise, can have no bearing upon the qualification and character of the crime. The
testimony of Baluyot to the effect that as soon as Governor
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Lerma emerged f rom behind the table the two engaged in a hand to hand struggle is preposterous in the extreme.
After the second shot was fired, Governor Lerma continued his flight along the corridor and, instead of attempting to pass out to the right into the recorder's
office, which would have exposed him to the danger of another shot while passing through the open space, he took refuge in a closet at the end of the corridor.
Once within, he shut the door and placed himself in a position' to obstruct the entrance of his pursuer, who vainly attempted to open the door.
The governor then began to call aloud for help, and Baluyot, judging the position of the governor's head from the direction of the sound thus emitted, fired his
revolver in the direction indicated. The bullet passed through the panel of the,door and struck Governor Lerma in the forward part of the head near and above
the right temple. It passed downwards and came out through the left eye, loosening the eyeball in its socket. This wound was necessarily fatal, though not
instantly so; and the governor evidently lost consciousness at once. Baluyot, feeling the movement of the body within the closet, opened the door without
resistance. As he did so the body of Governor Lerma shot forward out of the closet, as if in an attitude to embrace the slayer, who drew backwards, and the
body fell prone on the floor. In this position it remained and was found prostrate a few minutes later by persons who came upon the scene. Death ensued in
about two .or three hours, without recovery of consciousness.
Baluyot, immediately after the tragedy, stepped over to a window of the room overlooking the public square and, calling to a squad of Constabulary, who were
directing themselves to the provincial building, indicated that they should come up. At the same time he threw his revolver to the ground, with three empty shells
and others that had not been discharged. Upon the arrival of the Constabulary he surrendered without resistance.
The offense committed in this case exhibits features markedly similar to those which characterized the crime
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which was the subject of prosecution in United States vs. Gil (13 Phil. Rep., 530) ; and the offense here committed was properly qualified by the trial judge as
murder, in which was present the qualifying circumstance of alevosa. The presence. of this element is easily and in our opinion irrefutably indicated in the
conditions and manner both of the original attack and of the final act by which the offense was consummated.
With reference to the manner in which the attack was begun, the proof shows that access was gained by Baluyot, to the governor's office upon the pretext that
he desired a friendly interview; and although the strained relations existing between the two, owing to their political antagonisms, was appreciated by both, there
was nothing in the situation to warn the governor of impending trouble. The fact that Baluyot had already been called into the office upon the governor's first
arrival and had withdrawn for a few moments to permit another person to have an interview was also calculated to put the governor off his guard at the moment
Baluyot rentered the office. Being seated in a reclining chair, and hemmed in by obstacles which prevented him from reaching- his assailant, it is plain that the
unarmed governor could make no effectual defense against a person armed with such a deadly weapon as a revolver. It is obvious also that the means and
methods thus deliberately selected by the assailant were intended to insure the execution of the crime without any risk to himself arising from the defense which
the offended party could make.
We need not detain ourselves to analyze the conditions which existed when the second shot was fired, and we pass on to the third, with the single observation
that the entire assault from the beginning must be considered continuous and that the second shot was fired while the victim was endeavoring to flee to a place
of safety. The presence of alevosa in the firing of the third shot seems to be too patent to permit of controversy. The victim in his effort to escape had been
driven to take refuge in the closet, and with the door shut, it was impossible for him to see what his assailant
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was doing or to make any defense whatever against the shot directed through the panel of the door. It was as if the victim had been bound or blindfolded, or had
been treacherously attacked from behind in a path obscured by the darkness of night.
Even supposing that alevosa had not been present in the beginning of the assault, it would be necessary to find this element present from the manner in which
the crime was consummated. In United States vs. Elicanal (35 Phil. Rep., 209) Justice Moreland said:
"This court has held repeatedly that, even though the beginning of an attack resulting in the death of the deceased is free from treachery of any sort,
nevertheless it will be found present if, at the time the fatal blow is struck, the deceased is helpless and unable to defend himself. While the writer of this opinion
formerly held the view that, where there is no treachery in the attack which results in the death of the deceased, there can be no treachery which will qualify the
crime as murder notwithstanding the fact that, at the time the fatal blow was struck, the deceased was unarmed and defenseless, nevertheless, the court having
held so frequently the contrary, the writer accepts the doctrine so well established."
There was present in the offense in question the generic aggravating circumstance that said offense was committed in a place where public authority was
engaged in the discharge of duty. (Subsec. 19, art. 10, Penal Code.) There is no discernible difference at this point between the present case and that of United
States vs. Gil (13 Phil. Rep., 530, 533), in which this aggravating circumstance was declared to be present.
The trial court also found that the crime in question was characterized by the further aggravating circumstance of evident premeditation. Certain items of proof
which tend strongly to show the presence of this element may be briefly mentioned, It was testified by one Pedro Magajes, a friend of the accused, that on July
14, 1918, Baluyot in the course of a conversation with Magajes exhibited ill-feeling against
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Lerma and said that Lerma would pay for the misfortunes that were befalling him (Baluyot). Domingo Lintag, compadre of the accused, testified that on the
Friday in the month of August, prior to the commission of the crime in question, he saw the defendant in Orion; that when he and the defendant shook hands the
latter squeezed his hand tightly and said, "Parece ser que esta es la ltima vez que vamos a dar la mano" [may be that this will be the last time we will shake
hands]. This remark is especially noteworthy, since it shows that the accused contemplated some occurrence which would have grave consequences to him. On
the morning of August 3, the day on which the crime was committed, the accused asked more than one person if they thought. he was in Bilibid, intimating that a
false rumor to this effect had been maliciously circulated by his archenemy, Governor Lerma. This shows clearly that the mind of the accused was fixed upon
Lerma as the supposed author of his wrongs.
No very satisfactory explanation is given by the accused as to the reason for his trip to Orion and especially to Balanga; and the conclusion is irresistible that he
was carried to the latter place by a thirst for vengeance. Furthermore, the conduct of the accused in the next day or two succeeding the commission of the crime
was that of a person stimulated by a feeling of gratification over the successful accomplishment of a fixed purpose, not the conduct of one effected by grief over
the fatal results of a sudden and unexpected altercation. At no time did he exhibit any sign of regret for the act committed. The conclusion reasonably to be
drawn from the evidence as a whole is that the accused, for several days prior to the perpetration of this murder, had determined to seek an interview or
encounter with Governor Lerma regardless of consequences. It is impossible to say at what moment the determination to take life became a fixed resolution.
The design to kill was probably entertained when the accused went in the early morning of August 3 to the governor's office, and the putting of this resolution
into effect was at once determined upon
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when the accused found that the governor was unarmed. In order to constitute the element of known premeditation in the crime of murder it is not necessary
that the slayer should have prefigured in his mind all of the details of the crime or determined upon the exact moment when he should carry his purpose into
effect. It is enough that the determination to take life should have been formed for a period sufficiently long to allow the actor time to reflect coolly upon the
character and the consequences of the act, the accomplishment of the crime being left to some suitable opportunity such as chance or design may present. It is
thus manifest that the conclusion of the trial court that the offense was characterized by known premeditation is by no means without support in the evidence.
Nevertheless, as an express ruling on this point is unnecessary to the disposition of the case, we concede to the accused the benefit of the possible doubt, and
we accordingly refrain from making any express findings as to the presence of said element.
It is contended in behalf of the accused that the crime in question was qualified by two extenuating circumstances, namely, first, that it was committed under "an
impulse so powerful as naturally to have produced passion and obfuscation" (art. 9, subsec. 7, Penal Code), and, secondly, that "the offender had no intention to
commit so great a wrong as that committed." (Art. 9, subsec. 3, Penal Code). This contention rests upon certain statements found in the testimony of the
accused and which, in our opinion, are discredited by other evidence. Baluyot states that he began his first interview with Governor Lerma on August 3 by
saying that he wished Diputado [delegate] Reyes of Bataan could have been present as there were certain things which he wanted to say in the presence of
them both. Baluyot then stated that there was no doubt that Governor Lerma had won in the political contest and that it was also undeniable that in all. his own
misfortunes the governor had played an important and direct part. The governor, according to Baluyot, thereupon replied: "viene usted con la misma
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queja, Sr. Baluyot, pero no somos enemigos? Si furamos amigos, menos mal; y usted en nuestro lugar hubiera hecho lo mismo como usted ha hecho con mi
compadre Velez que acaba de ser separado de la Guardia Nacional." [You come with the same complaint, Mr. Baluyot, but, are we not enemies? If we were
friends, not quite so bad. If you were in our place you would have done the same as you have done with my friend (compadre) Velez who has just been
discharged from the National Guard.] Baluyot says that in reply to this he protested that he had nothing to do with the separation of Captain Velez from the
National Guard. At this juncture the governor suggested that the interview was going to be somewhat lengthy and requested that Baluyot should yield his turn
for a few minutes until the governor could have a short interview with Aranjuez. Thereupon the interview was interrupted in the manner already stated, Baluyot
withdrawing for a few moments into the recorder's office.
Baluyot says that, when he was readmitted into the presence of the governor, he seated himself in the same chair in front of the governor's desk where he had
been seated before, and the conversation was resumed. This conversation according to Baluyot was of the following tenor:
"GOVERNOR LERMA. Where do you say you are going to, Mr. Baluyot?
"BALUYOT. I am thinking of going to Cebu and residing therefor some time with my brother-in-law.
"The GOVERNOR. But you will not be able to do so very soon, perhaps until after several months.
"BALUYOT. That is not true. On my return to Manila, I'll prepare for my trip and go to Cebu.
"The GOVERNOR. I believe you will not be able to carry that out, because Judge Concepcin will detain you.
"BALUYOT. Why?
"The GOVERNOR. Well, Judge Concepcin has sentenced you for estafa to four months, and I don't know how many days; truly that is a good idea, to change
location, a location
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so full of people as Cebu where nobody knows you perhaps you may be able to cheat better."
Baluyot says that, upon being inf ormed by Governor Lerma that Judge Concepcin had rendered judgment against him in the estafa case condemning him to
prison, he lost his head, as he was in high hopes of being acquitted in that prosecution. He accordingly, at the close of the foregoing words imputed to Governor
Lerma, rose from his chair and used the words which we have quoted in a former part of this opinion with reference to the calibre of Governor Lerma's revolver,
at the same time unbuttoning his coat and producing his own weapon.
Even supposing that the conversation between the accused and Governor Lerma was exactly as stated by Baluyot, the language used by Governor Lerma was
not such as could have produced passion and obfuscation in Baluyot sufficient to constitute the mitigating circumstance defined in subsection 7 of article 9 of the
Penal Code. It is to be noted, however, that no such conversation as that above transcribed could possibly have taken place in the interval between the
rentrance of Baluyot into the governor's office and the time when the words addressed to the governor about the revolver were heard in the recorder's office.
From the testimony given by the witnesses Pedro Gonzales, Antonino Aranjuez ,and Gregorio de Guzman, we consider it to be irrefutably established that the
first shot was fired within nine or ten seconds after Baluyot rentered the governor's office and that the interval which elapsed was scarcely more than sufficient
to allow Baluyot to reach the governor's desk.
The mind of an unbiased person must also be impressed' with the inverisimilitude of imputing to Governor Lerma knowledge of a judgment rendered by a court
in the City of Manila against Baluyot of which Baluyot was ignorant, for under section 41 of the Code of Criminal Procedure sentence in such a proceeding as
that then pending against this accused must be pronounced in the presence of the condemned person, and if Baluyot had in fact been convicted he himself
would have been among the first to learn of it.
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It is highly improbable that Governor Lerma would have been guilty of conduct so unbecoming as to have engaged in bantering a political enemy over a matter
so delicate, when judgment had not in fact been pronounced. Our conclusion is that Baluyot's account of the words which passed between him and Governor
Lerma immediately prior to the firing of the first shot must be rejected as false.
The contention that the accused had no intention to commit so great a wrong as that committed rests upon the statement of Baluyot that the third shot was
accidentally discharged from his revolver while he was attempting to push open the door of the closet in which the Governor had taken refuge. This pretension is
hardly deserving of serious notice, as it is refuted not only by the circumstantial evidence bearing upon this phase of the tragedy but also by an admission made
by Baluyot on August 5 in conversation with Eusebio Reyes, reporter of a Manila newspaper. In this conversation Baluyot stated that he pursued the deceased
to the door of the closet and, having observed from the cries emitted by Governor Lerma that the latter was seated behind the door, he (Baluyot) discharged his
pistol in the direction where he divined the governor to be. We have no doubt as to the truth of this admission, and it is a complete refutation of the suggestion
that the discharge of the revolver was accidental.
What we have thus far said suffices to demonstrate that in slaying Governor Lerma, the accused was guilty of murder with at least one aggravating
circumstance and that the penalty for murder was properly imposed in its maximum degree. It is, however, further insisted in the brief' of the Attorney-General
that in reality two crimes were committed by the accused in the same act, namely, murder and assault upon a person in authority. Under this conception of the
case also the penalty for murder should be imposed in its maximum degree under article 89 of the Penal Code.
We agree with the Attorney-General upon the proposition that the same act in fact resulted in this case in the
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perpetration of two crimes. That the homicide is to be characterized as murder we have already determined; and it is undeniable that, an attack was in the same
act made upon a person in authority while exercising the duties of his office, as charged in the complaint, since the deceased was, as a provincial governor, an
authority within the meaning of article 249 of the Penal Code. These considerations in our opinion supply an additional irrefutable basis for the imposition of the
death penalty by the trial judge, though his decision did not discuss this aspect of the case.
What has been said is sufficient to dispose of so much of the appeal as is concerned with the commission of the offense and its legal qualification under the law.
Other questions, however, are raised relative to the conditions under which the case was called to trial and the manner in which the prosecution was conducted
in the Court of First Instance. In this connection various errors of law are imputed, in separate assignments, to the action of the Hon. Carlos Imperial, who acted
as judge in the court below.
In the first specification of error the appellant alleges that "he was not given ample opportunity to defend himself," because the court denied his attorney's last
request for a continuance. Upon this ground the appellant seeks to secure from this court, if not a reversal of the judgment, at least an order for a new trial. The
assignment of error is in our opinion without merit. It appears in evidence that on August 3, 1918, the provincial fiscal filed an information in the court of the
justice of the peace charging the accused with the crime of murder. On the 5th, he appeared and waived the right to be defended by an attorney and requested
that the "expediente" be sent to the Court of First Instance as soon as possible. On the 9th, an information was filed in the Court of First Instance, whereupon
Manuel Banzon, a regularly admitted member of the bar, was appointed by the court as attorney de officio for the defendant upon the latter's request, and he
was duly arraigned, entering a plea of not guilty. On that date the attorneys for the Government asked that the trial be
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set for the 12th, but the counsel for the accused requested that it be set for the 15th, which petition was granted. After the case was called for hearing on the
15th, the court received a telegram from Vicente Sotto, then a member of the bar in Manila, stating that he had been employed by the family of the accused and
asking that the hearing be postponed until the following Monday. The attorneys for the Government objected to this request but the court, nevertheless,
postponed the hearing until the following day, and Sotto was immediately notified by telegram of that order. Sotto at once departed for Balanga and was present
in court when the case was called for trial the next morning. Banzon was authorized by the court to retire from the case only with the defendant's consent and
after Sotto had made his appearance and taken charge of the case.
From the foregoing statement it is seen that the accused was at all times represented before the court by a competent attorney, and no fact is adduced which
would enable us to say that he was in any wise embarrassed in the making of his defense by the action of the court in setting the case for trial on August the
sixteenth and proceeding with it on that day. It cannot be permitted that a trial court should be put in error for refusing a continuance when there is nothing
whatever to show that the accused was in fact prejudiced by the action taken. Where a continuance is sought on the ground of want of preparation, an affidavit
should ordinarily be filed showing in what respect the applicant is not ready and that he has made reasonable exertions to prepare for trial without success, or
some good reason for not making such exertions. (13 Cor. Jur., 183.) Nothing of the kind was done in this case; and when Sotto actually appeared in court and
assumed the duties of attorney for the accused, no application for a continuance of any sort was really made. On the contrary the attorney was content merely
to cause a note to be made in the record to the effect that he respectfully protested against the telegram which the court had sent to him the day before notifying
that the cause was set for trial on the 16th. No
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statement whatever was made showing why further delay was necessary. The action taken by the court was in our opinion in no wise prejudicial and was
therefore not erroneous.
In United States vs. Lao Chueco (37 Phil. Rep., 53), it was held that "when an accused is obliged to come to trial without having the opportunity to cite his
witnesses it cannot be said that he is given the opportunity to be tried completely, fully and impartially as the law prescribes, and a new trial will be ordered." But
in that case the accused was deprived of the opportunity to subpna his witnesses, whereas in .the case at bar neither the accused nor his attorney informed
the court that there was any witness that they wanted to be cited. It does not appear even now that there was any essential witness whom he could have
presented had not the case been tried on August 16th.. When the accused was arraigned on August 9 the court told him that, if he had any witness that he
wanted the court to subpna, he should so inform the court as soon as possible in order that the trial of the case might not be delayed.
The second assignment of error raises a question which is addressed to the personal qualification of his Honor, Carlos A. Imperial, to preside at the hearing of
this case. The exception to the trial judge was based on the fact that the latter had attended the funeral obsequies of Governor Lerma, which had been
characterized by marked manifesta- estations of public grief and sympathy. This fact was relied upon as showing that Judge Imperial was biased and could not
be relied on to try the accused with rectitude, justice, and impartiality. The judge, however, did not accede to this suggestion and proceeded with the trial as
already stated. There is in our opinion no merit in the assignment. No prejudice on the part of the judge is in fact shown, and the record by no means bears out
the assumption that the judge was in fact in any wise biased.
Furthermore, the objection raised is not based upon any of the grounds of disqualification stated in section 8 of Act No. 190. This section expressly enumerates
without
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ambiguity the gases in which a judge or justice of the peace is disqualified from acting as such, and the express enumeration of these cases excludes others.
Such is the tenor of the decisions of this court in the cases of Perfecto vs. Contreras (28 Phil. Rep., 538), and Joaquin vs. Barretto (25 Phil. Rep., 281). In the
case last cited it was held 'that extreme delicacy was no ground for disqualifying a judge from trying a case. The decisions just cited are civil cases but in the
absence of express provision in the Code of Criminal Procedure, the analogy is of value.
In the third assignment it is imputed as error that the court at the hearing denied a motion of the attorney of the accused to withdraw the plea of not guilty
previously entered by him in order to permit a demurrer to be filed to the information. The attorney did not disclose to the court the ground on which he proposed
to base his demurrer, and as the information appears to be sufficient, it is evident that this motion was merely dilatory, and the court committed no error in
refusing to accede thereto. The action of the trial court in passing upon an application of this character is largely discretionary and is not subject to review except
where the judicial discretion appears to have been abused.
The fourth specification is addressed to the supposed error of the court in refusing to compel the provincial fiscal to produce in court at the request of the
attorney for the accused certain written statements which had been made by the witnesses Pedro Gonzales, Gregorio de Guzman, and Antonio Aranjuez in a
preliminary inquiry conducted by the fiscal preparatory to this prosecution. It appears that after the witnesses above mentioned had been examined in court for
the prosecution, they were turned over to the attorney for the accused and were by him fully cross-examined. Later, when the giving of testimony for the
prosecution had been concluded, the defense proceeded to introduce sundry witnesses who were examined in due course. After four had thus testified, and
immediately .before the accused was placed upon the stand in his own
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behalf, his attorney made the request that the declarations or statements above referred to should be produced. The attorney for the prosecution objected on
the ground that one party cannot be compelled to produced evidence in favor of the other. The court was of the opinion that the written declarations the
production of which was sought were of a privileged nature and accordingly overruled the motion. We are of the opinion that the court was not in error in
refusing to compel the production of the documents in question. They were not original or independent evidence of such a character as to give the accused an
unqualified right to compel their production, and no proper basis was laid in the cross-examination of the witnesses who had made those statements to justify
their production with a view to the impeachment of the declarants. The request was of course based upon the supposition or expectation that if the statements of
the witnesses before the fiscal were produced, they might be found to contain something different from what was contained in their testimony given in court.
We know of no rule of practice which sustains the contention of the appellant' The statements in question were not the sworn declarations of witnesses taken in
conf ormity with the requirements of section 13 of General Orders, NO 58, and which are commonly attached to the "expediente" transmitted by the committing
magistrate to the Court of First Instance. In the case at bar the preliminary examination before the committing magistrate was waived by the accused, and the
declarations of the witnesses for the prosecution were therefore not taken before the magistrate. The declarations referred to were, on the contrary, taken in an
investigation conducted by the fiscal under the authority of section 1687 of the Administrative Code. This section authorizes the fiscal, if he deems it wise, to
conduct an investigation into the matter of any crime or misdemeanor for the purpose of instituting or carrying on a criminal prosecution It is expressly declared
that this section shall not be construed to authorize a provincial fiscal to act as a justice of the peace in any preliminary investigation. The
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proceeding here contemplated is of an administrative character, and the information thereby acquired is intended for the use of the fiscal in the conduct of the
prosecution. Such declarations therefore pertain to the official file in the office of the public prosecutor and are not subject to production at the mere request of
the attorney for the accused where no ground therefor had been laid.
In order that we may not be misunderstood, as well as for the purpose of clarifying the practice in such matters, a few words may here be properly said in
respect to the proper mode of proceeding in a case where a party wishes to get before the court contradictory statements made by a witness who is testifying
for the adversary party. For instance, if the attorney for the accused had information that a certain witness, say Pedro Gonzales, had made and signed a sworn
statement before the fiscal materially different from that given in his testimony before the court, it was incumbent upon the attorney when cross-examining said
witness to direct his attention to the discrepancy and to ask him if he did not make such and such statement before the fiscal or if he did not there make a
statement different from that delivered in court. If the witness admits the making of such contradictory statement, the accused has the benefit of the admission,
while the witness has the opportunity to explain the discrepancy, if he can. On the other hand, if the witness denies making any such contradictory statement,
the accused has the right to prove that the witness did make such statement; and if the fiscal should refuse upon due notice to produce the document,
secondary evidence of the contents thereof would be admissible. This process of cross-examining a witness upon the point of prior contradictory statements is
called in the practice of the American courts "laying a predicate" for the introduction of contradictory statements. It is. almost universally accepted .that unless a
ground is thus laid upon cross-examination, evidence of contradictory statements are not admissible to impeach a witness; though undoubtedly
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the matter is to a large extent in the discretion of the court.
We wish to add that in a case of this kind, if the accused had, by affidavit or otherwise, made it appear to the satisf action of the court that the witnesses named
had made statements in their declarations before the fiscal materially at variance with their statements in court and that the production of said declarations was
necessary or even desirable, in the interests of justice, the court would have had ample power to order their production. No such showing, or intimation, was
made in this case; and the attorney who made the motion was merely angling at random to discover something that might prove to be favorable to his client. To
put a court in error for refusing to entertain such a motion would encourage frivolous delays and tend to embarrass the speedy and proper administration of
justice.
The last assignment directed to supposed error of law in the action of the trial court is to the effect that the judge made his decision without hearing the
assessors who acted at the trial. In this connection it appears that at the request of the accused two assessors were appointed in accordance with the
provisions of sections 153-161 of Act No. 190, which provisions were extended to criminal causes by Act No. 2369 of the Philippine Legislature. The record does
not show that the assessors in the case before us were in fact consulted by the judge, and the decision of the court makes no mention of them. We are of the
opinion that, the irregularity, if such it be, is immaterial. The functions of the assessor are purely advisory, and the responsibility f or the decision rests
exclusively with the judge. The statute does not require that the opinions of the assessors shall be recorded except where two or more assessors are of the
opinion that the court's findings of fact are wrong. In the silence of the record it is to be presumed not only that the f unctions of the assessors were properly perf
ormed but that they agreed with the findings of the court. This presumption is borne out in the case before us by the cir-
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cumstance that after the records of the case had been sent up to this court, the clerk of court of Bataan forwarded as part of said records certifications signed by
the assessors who had sat in the case, stating that they had read the decision rendered by the court and that they concurred in the findings of fact made therein.
It is not necessary that the record should affirmatively show that the judge consulted the assessors before making his decision, as in the absence of a showing
to the contrary it is to be presumed that he did so.
From the preceding discussion it is apparent that, in the view sustained by the majority of the members of this court, no material error was committed by the trial
judge either in the mode of conducting the trial or in the qualification of the crime and fixing the penalty attendant thereupon. However, as one of the Justices of
this court is not in accord with the majority with regard to the propriety of the imposition of the death penalty, the penalty imposed must, in conformity with the
requirements of Act No. 2726 of the Philippine Legislature, be reduced from death to cadena perpetua with the accessory penalties prescribed in article 54 of
the Penal Code. As thus modified the judgment appealed from is affirmed, with costs against the appellant. So ordered.
Arellano, C. J., Torres, Johnson, and Avancea, JJ., concur.
Malcolm, J., was not present at the argument, and did not take part in the disposition of the case.
Moir, J., voted with the majority of the court for the affirmance of the judgment, but on account of his absence at the time of .the promulgation of this opinion his
name does not appear signed thereto. (Sgd.) C. S. ARELLANO.
ARAULLO, J., dissenting:
I dissent from the foregoing opinion of the Justices in regard to the classification of the crime committed by the accused Jose I. Baluyot and the penalty which
ought to be imposed upon him.
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After a careful study of the case, in my opinion the death of Governor Conrado Lerma of the Province of Bataan caused by Baluyot in the morning of August 3,
1918, cannot be qualified by alevosa (treachery), and consequently the crime committed by said accused is that of homicide. Wherefore, the penalty
corresponding to said crime should have been imposed.
There is treachery (alevosa) when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof
which tend directly and specially to insure its execution without risk to himself arising from the defense the offended party might make. (Art. 10, par. 2, of the
Penal Code.)
It is a doctrine upheld repeatedly by the courts that the circumstances which qualify the homicide, converting same into murder, ought to be proven by the
prosecution like the homicide itself, to wit, beyond a reasonable doubt, bef ore the same may be qualified as murder and the corresponding penalty imposed;
that in order that the 'crime of murder may be considered established, it is requisite that there appear proved in a manner evident and undisputable one of the
circumstances enumerated in article 403 of the Penal Code; that- mere presumptions and hypothetical deductions do not suffice for their appraisal and
justification. It has also been held repeatedly that bef ore treachery can be considered as a qualifying circumstance of the crime of homicide, it is requisite that
there appear as clearly proven that regarding it no doubt whatever presents itself, arising from suppositions founded on facts which may have been the subject
matter of the evidence at the trial.
It was proven: First, that the accused Jose I. Baluyot, between 10 and 11 a. m. of August 3, 1918, finding himself in the room or office of the provincial governor
of Bataan, Conrado Lerma, alone with the latter, with a revolver which he was carrying fired, first, two shots at short intervals at said governorthe first shot
while the governor was seated in front of his writing desk, the second while he, having stood up, was in the act of betaking himself to a little
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passage-way leading to a corridor adjoining the office,and afterwards a third, the said Lerma then being behind the door of a closet, wherein he took refuge,
fleeing from his pursuer who aimed said third shot through said door; second, that the projectile of the first shot entered the frontal region of Lerma's right
shoulder blade, that is to say (as Dr. Mencias, who examined him five minutes after the incident has stated), the region below the upper right clavicle, passing
through the said part of the body, the back of the chair in which Lerma was sitting and lodging itself in the wall of the room behind the chair; third, that the
projectile of the second shot also entered the same part of Lerma's body but about one or two inches from the first, passed through the body and, like the first,
came out of the shoulder blade on the same sidesaid wounds not being necessarily mortal except in case of complications; and fourth, that the projectile of
the third shot penetrated the panel of the door behind which the decease had taken refuge, struck him in the right temporal region, coming out of the left eye
and destroying same, this wound being necessarily mortal and serious for the cerebrum was penetrated, the result being that the wounded Lerma, without being
able to say a word and without recovering conciousness, died at 2:35 p. m. of that same day, or approximately three hours after having been wounded.
Governor Lerma and the accused Baluyot being alone in the governor's office when Baluyot, making use of the revolver which he was carrying, began the
attack; and nobody having witnessed what occurred between them before the one began the attack upon the other or during the same; and the one attacked
having died without being able to say a word, on account of the gravity of the wound caused by the last shot; it is undeniable that no one, with the exception of
the accused himself, has been in a position to relate what took place then between him and the deceased.
It is said in the majority decision that the accused, in the morning of the third day of August aforesaid, was awaiting Governor Lerma in the recorder's office, a
sort of
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anteroom to the governor's office; that on the governor's arrival about 11 o'clock a. m. after an exchange of friendly greeting and handshaking the accused was
invited first by the governor into said office, in preference to another caller called Aranjuez who was also waiting; that the accused entered and, the two
remained alone in said office for 3 or 4 minutes, but as it appeared to the governor that the interview would be longer, he requested the accused to go out a
minute in order to confer with said Antonino Aranjuez. The accused did so, Aranjuez entered the governor's office and had a few minutes conference. As soon
as this was over, the accused rentered the governor's office and that was when the aforementioned three shots fired successively by the accused, were heard.
Referring to what took place then between him and Governor Lerma, the accused said that he came that morning from Orion to Balanga where he had been
during the first hours of the same morning occupied in shipping his wife's piano to Manila, his purpose being to have an interview with the Representative of said
province, Reyes, and Governor Lerma, to talk over certain things with them and to bid them good-bye before leaving for Cebu as he intended to do, but as
Representative Reyes was not in town then, his interview was only with the governor; that the first time he met the governor in his office telling him the object of
his visit, Lerma said: "I can almost guess what you want to say to me;" that he answered: "So much the better. That will save me time. There is not the least
doubt but that you have defeated me, just as it is also almost undeniable that in all of my misfortunes as these documents I have in my hands prove, you have
had very important and direct participation;" that the governor then replied: "You come with the same complaint, Mr. Baluyot, but, are we not enemies ? If we
were. friends, not quite so bad. If you were in our place you would have done the same, as you have done with my friend (compadre) Velez who has just been
discharged from the National Guard;" that after having denied that he had any thing to do with Captain
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Velez's discharge the governor asked him if his interview would be long and if he would be willing to grant Aranjuez, who was waiting in the recorder's office, his
turn with whom he (governor) would have a short interview that in compliance with the governor's suggestion he withdrew to the recorder's office and, Aranjuez's
interview with the governor being over, he rentered said office and resumed the previous conversation in the following words:
"GOVERNOR LERMA. Where do you say you are going, Mr. Baluyot?
"BALUYOT. I am thinking of going to Cebu and residing there for some time with my brother-in-law.
"GOVERNOR. But you will not be able to do so very soon, perhaps not until after several months.
"BALUYOT. That's not true. On my return to Manila I'll prepare for my trip and go to Cebu.
"GOVERNOR. I believe you will not be able to carry that out, because Judge Concepcion will detain you.
"BALUYOT. Why?
"GOVERNOR. Well, Judge Concepcion has sentenced you for estafa to four months, and I don't know how many days;" that when he heard this he lost his
head, as he was in high hopes of winning the case or of being acquitted in the prosecution; that the governor continued saying to him; "Truly that is a good idea,
to change residence in a place so full of people as Cebu, where nobody knows you, perhaps you may be able to cheat (estafar) better; that then he got up from
his seat and addressed the governor in these words: "It appears to me that your revolver and mine have the same calibre;" that the governor answered: "No, sir;
mine is 32;" that to this he replied: "So is mine. Be prepared because one of us must die;" that upon saying this he opened his coat and drew his revolver; that
then the governor raised his right hand putting it right on the shelf where there was a sword (cris), but on seeing the revolver out of its case he cried out: "Oh!
Mother! guard!;" that he (the accused) fired the first shot; that the governor having fallen towards the East, he again pulled the trigger of the
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revolver, but having missed his shot while he was fixing the trigger, the governor got up grabbing him in order to reach his right hand with which he was fixing
the trigger, and after this struggle he (governor) fled starting to run towards the corridor; that he then approached the door of the closet, wherein the governor
had taken refuge, with the trigger raised, and when he tried to push said door the revolver went off, the accused not knowing whether it was the third or fourth
shot; that after this shot the door was half-opened; that on pushing it, the governor got up in an attitude to embrace him, and he then believed that the governor
was trying to struggle with him, but the governor took one step backward and fell prostrated completely on the floor; that he was immediately arrested afterwards
by the constabulary to whom he voluntarily surrendered; and that before this he threw from the window his revolver with the cartridges remaining in order that
the constabulary soldiers in front of said window should take charge of them.
While the foregoing facts were taking place in the governor's office manner stated by the accused, in the adjoining recorder's office were the recorder himself
(Pedro Gonzalez), Antonino Aranjuez who had a few moments before left the governor's office, and Gregorio de Guzman, the provincial assessor, who were
produced at' the hearing as witnesses for the prosecution.
Pedro Gonzalez testified that, while seated in his office chair, that is in front of the table marked No. 9 in the prosecution's plan, Exhibit B, and shortly after the
accused entered the governor's office after Antonino Aranjuez's interview had come to an end, he heard one pistol shot, that the time from the moment the
accused entered the aforesaid office until he (the witness) heard said first shot was enough for the accused to go from the witness' office to the governor's desk
or about two seconds, calculating the distance between his desk and the governor's to be only some ten steps; that having left his office, going towards the
engineer's office in order to ask for help and being in front of said office, he heard a second shot; that the time which elapsed between
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United States vs. Baluyot,
the first and second shots was about 20 or 30 seconds, the distance between his office and that of the engineer being about 15 or 20 meters; that having
immediately gone to the auditor's office, in the lower story of the building, he heard the third shot, more than a minute after the second.
The second witness, Antonio Aranjuez, testified that after he had been some two minutes only in the governor's office, talking with the governor, who said he
would be appointed chief of police of the municipality of Limay, he left the governor in his chair, went to the adjoining office of the recorder and there, to a
question of the accused, replied that his interview with the governor was now over; that then the accused entered the governor's office; and he (witness) was not
yet seated in a chair in the recorder's office, in the place. marked with the letter Y in the said Exhibit B, and was in the act of picking up a penholder, when he
heard the accused Baluyot say "governor" and immediately afterwards a shot; that on hearing said shot, he ran towards the door opening into the governor's
office, reached the side of a screen next to said door, and from there saw the accused fire a second shot with his revolver at the governor; that he then began to
run first towards the warden's office, in the lower part of the building, in order to ask for help and afterwards towards the Constabulary barracks; that just as he
was about to go out of the front door of said provincial building, he heard the third shot fired from the same place as the two other shots; that the time from the
moment the accused entered the governor's office until he heard the first shot was 9 or 10 seconds; that from the first to the second shot was 5 or 6 seconds;
and that from the second to the third shot was 3 or 4 minutes, more or less.
The third witness, Gregorio de Guzman, the provincial assessor, testified in turn that when the accused Baluyot entered the governor's office, he was very near
the recorder's desk and approximately one meter from the door which was between the governor's office and that of the recorder; that at the moment he was
saying good-bye and leaving the re-
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corder's desk to go to his, own office, he heard the accused Baluyot asking the governor for his revolver saying: "I would like to see your revolver," that as he
was taking hold of the door to go out of the recorder's office, he could not understand the other words of the accused, who was then talking in a natural tone
without any indication of a quarrel; that he heard the aforementioned words on going out towards the corridor, and for this reason he could not say whether or
not the governor answered; that Baluyot spoke those words as soon as he (Baluyot) was in front of the.governor, because Baluyot entered the governor's office
while the witness was in the recorder's office; that the distance between the recorder's desk and that of the governor was some 9 meters, more or less; that after
leaving and while in f ront of the engineer's office, he heard a pistol shot coming from the place where he had been; that the time from the moment he heard
Baluyot's words addressed to the governor until he heard said shot was, according to his opinion, 9 or 11 seconds; that the distance between the recorder's
office and that of the engineer was 10 to 11 meters, more or less, and he was then walking naturally; that upon returning to the recorder's office because he had
heard the shot coming f rom that place and supposed it was an accidental one, he could not enter said office for, when he was about to enter he heard a second
shot, and he saw coming out, Antonino Aranjuez, who said that Baluyot had fired at the governor; that the time from the first to the second shot was about 5 or 6
seconds; that after hearing the second shot and seeing Aranjuez, he went to the provincial guard room, called the guards from the steps of the building, and
then to the warden to tell him what was going on upstairs; that after loading his revolver and after asking the warden if he would go to help the governor, and
while he was on the stairway, he heard another shot; that finding nobody there, and having entered the auditor's office, which was open, and in which were the
provincial assessor and an employee of the treasurer's office, he heard another pistol
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shot fired from the governor's office; and that the time from the second to the third shot was about 2 or 3 minutes.
And, finally, said three witnesses for the prosecution declared that they had not noted nor heard any dispute, altercation, quarrel by words or blows between
Governor Lerma and the accused from the time the latter entered the governor's office and before the first shot was heard.
Now then, if, according to the recorder, Pedro Gonzalez, only some two seconds elapsed from the moment the accused entered the governor's office until he
reached the governor's desk and fired the first shot, said witness made it clearly understood that the accused had no time enough to hold with the governor the
dialogue related by said accused in his testimony, but suddenly, unexpectedly and instantaneously fired his first revolver shot at the governor as soon as he was
near him. But it is not explained nor is it comprehensible, unless said witness has not told the whole truth, why the second witness, Antonino Aranjuez (who was
going to take a seat at a table in the very end of the same recorder's office which, according to plan Exhibit B, is 5 meters and 96 centimeters long and away
from the recorder's table approximately this same distance, as is shown in said plan) heard the accused, after having entered the governor's office, say
"governor" before hearing the first shot, and affirmed also that the time that passed from the moment the accused entered the governor's office until he heard
said first shot was 9 to 10 seconds. Neither does one understand how the recorder, Gonzales, heard the first shot fired by the accused two seconds after the
latter entered the governor's office and as soon as he had reached the governor's desk, without making mention of having heard the accused say some word to
the governor, when the third witness Gregorio de Guzman, the provincial assessor, (who was precisely at the side of the recorder and next to the door
separating the office of the latter and that of the governor; i. e., in the same place where the recorder was) heard the accused say, upon entering the governor's
office,
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"Governor, I would like to see your revolver." But, it is far more incomprehensible that when the aforementioned witness Guzman heard the accused utter the af
oresaid words he was taking leave of the recorder,. as he testified, and leaving the table of the former bound for his own table (that belonging to the provincial
assessor) but that he heard the first shot only when he was in front of the door of the engineer's office which was about 10 or 11 meters from the recorder's
office and only after 9 or 11 seconds after having heard Baluyot ask the governor for his revolver; i. e., the witness being already outside of the recorder's office
and having walked a distance of about 10 or 11 meters from this office to the engineer's, a distance much greater than that intervening between the door of the
recorder's office and where the governor's table was, as may be seen in the plan Exhibit B.
It is evident that the three witnesses having referred to the same act, having been placed under similar condition so as to have been advised of what the
accused may have said to the governor before firing the first shot, and having heard the first shot, no one of them ought to have f ailed to have perceived that
which the others heard from the accused when the latter talked to the governor. If the object of the prosecution in presenting these witnesses was to prove that
Governor Lerma was unsuspectedly and suddenly assaulted by the accused immediately on having placed himself in front of the former, firing at him the first
shot which caused a wound in his right shoulder blade, and immediately thereafter the second shot which struck exactly the same part of his body, one or two
inches from the first, and to prove also that between the accused and the governor no words were exchanged nor did the said dialogue ever take place, it is
evident that said object has not been obtained. The discrepancy and contradiction in the testimony of the two witnesses, Antonino Aranjuez and Gregorio de
Guzman, on the one hand, and that of the other witness, Pedro
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Gonzalez, on the other hand, is so evident that one is unable to infer from their respective testimony what took place between Governor Lerma and the accused
while the two were alone in the office of the former, before the accused assaulted the governor, and at the time the first shot was fired followed immediately by
the second is a positive and proven fact.
However, in the foregoing decision the majority say that, from the testimony given by the aforementioned three witnesses, they consider irrefutably established
that the first shot was fired within 9 or 10 seconds after Baluyot reentered the governor's office, and that the interval which intervened was scarcely more than
sufficient to allow Baluyot to reach the governor's desk.
I do not believe that the evidence warrants such a conclusion. Aside from the fact that for the reasons already set forth absolute credit cannot be conceded said
three witnesses in all that each has stated regarding the particulars already mentioned, it is indisputable that, if it be accepted as an established fact that the first
shot was fired within 9 or 10 seconds, it cannot be accepted at the same time as certain that the interval which intervened after the accused rentered the
governor's office or, better said, went to this office from the recorder's was hardly more than sufficient to allow the accused to reach the governor's desk, for the
simple reason that what is deduced from the testimony of Antonino Aranjuez and Gregorio de Guzman regarding the first point is an evident contradiction of
what the recorder, Gonzalez, said regarding the second or last point. The recorder said that the distance between his desk and that of the governor was only
some 10 paces and that the time intervening from the moment the accused entered the governor's office until he (the witness) heard the first shot was some two
seconds or the time sufficient, according to said witness, to reach the governor's desk from that office. But according to the affirmations of Aranjuez the first shot
was fired within the 9 or 10 seconds after the accused had. reentered the governor's office, and according to De Guzman
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from 9 to 11 seconds elapsed after Baluyot was heard saying to the governor that he would like to see his (the governor's) revolver (words that Baluyot uttered
upon arriving in front of the governor) until the first shot was heard, said witness being then in front of the engineer's office. Wherefore it cannot be affirmed that
what the recorder Gonzalez told about the particulars in question is not true, because, as anybody, watch in hand, can prove it, the distance of 10 steps between
two points cannot be covered walking at natural pace and not hurriedly, in 2 seconds only; but from 8 to 9 seconds. Regarding the other two witnesses, one
cannot deny that the basis for their computation of the time intervening from one moment to another was only reliable in a small degree and easily fallible when
before-hand (i. e., from the first moment) there had been no intention to determine it, and, even so, any calculation is not able always to come out exact. These
two witnesses could have just as well said that the time intervening from the moment stated by each respectively in this affirmation until they heard the first shot
was from 20, 30, 50, seconds or one minute more, without anybody contradicting them and without their giving any reason justificative of said computation, as
they have said that it was from 9 to 10 or 11 seconds. It is to be noted also that said Aranjuez and De Guzman have come to agree in their computations
regarding the first shot, the first saying it was from 9 to 10 seconds the second from 9 to 11; and also regarding the time which transpired from the first shot to
the second, the two saying it was some 5 or 6 secondscoincidence which is rather strange as far as it reveals complete identity in the computation, made by
the two, and rather unnatural and unexpected, especially if there is taken into consideration the circumstances in which are unrolled the events to which said
computation refers. And so much the more strange as the other witness, Gonzalez, has not coincided with the other witnesses in the computation which
concerns the first shot as much as the-second, for according to said witness
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between the first and the second shot passed not 5 or 6 seconds, but 20 or 30 seconds.
Therefore, in my judgment, the aforementioned conclusion cannot be reached by means of the testimony of the witnesses who were in the secretary's office, i.
e., of the three witnesses above named; nor can it be conclusively deduced from same, as is also stated in the same decision, that, immediately upon asking
the governor about his revolver, and discovering that he was defenseless, Baluyot drew his own revolver and fired.
However, in order to arrive at said conclusion, the majority has had under consideration various facts and circumstances which are related in the same decision
indicative of the purpose then conceived, according to the majority, by the accused to kill treacherously Governor Lerma.
In fact it is said in the majority decision that the governor, upon being informed that Baluyot had gone there to have an interview with him, invited Baluyot to pass
into his office; but Baluyot hesitated, having noted the presence of another caller, and asked if the latter did not have a prior right to an interview with the
governor.
What follows from the evidence regarding this particular is that: First, according to the recorder, Pedro Gonzalez, who was then in his office, when Governor
Lerma arrived and saw Baluyot he greeted the latter and invited him to pass into his office and that Baluyot went in; second, according to Antonino Aranjuez,
when the governor arrived in the recorder's office, he greeted everybody, saying "good morning," that they, in turn, greeted him, that Baluyot shook hands with
the governor who then invited Baluyot to enter his office saying: "Come here, friend, pass in," and then Baluyot asked: "Which of us two, Mr. Aranjuez or myself,
is the one who ought to enter first?" and the governor answered: "You ought to enter first," and, in fact, the governor and Baluyot entered into the former's office;
and third, according to the same accused, Baluyot, in that morning he was in the recorder's office where he found an employee
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typewriting; that the recorder Gonzalez and Aranjuez arrived after he did; that when the governor arrived all greeted each other as usual; that the governor
having invited him, saying: "Come in," he (the accused), before entering the governor's office, asked the recorder who of those waiting for the governor had the
prior right to enter, that the recorder said: "He who had arrived first ought to enter first," then he (the accused) entered the governor's office; the accused added
furthermore, in his testimony (rec., 236) that the provincial assessor, Gregorio de Guzman, having entered the recorder's office while Aranjuez was in the
governor's office, he (the accused) said to the recorder the following: "Mr. Gonzalez, I give you notice that the next turn is mine and not Mr. Gregorio de
Guzman, who has just come," and De Guzman answered: "Yes, I give my turn to you," and that after Antonino Aranjuez had come out of the same he (the
accused) then entered the governor's office.
As it appears from the foregoing facts, the accused did not hesitate to enter into the governor's office because he had noted the presence of another caller. The
truth is that, upon having been invited by the governor into his office, the accused went in but before entering, he showed himself disposed to enter after
Aranjuez if his turn was not prior, having first asked the recorder whose turn it was of those who were waiting for the governor. Certainly, it cannot be said f rom
this that the accused should have shown hesitation then because he should want to be alone with the governor in his office, as it seems to be given to infer in
the majority decision. And it is so much the more certain that the accused did not hesitate to enter the governor's office inasmuch as when Gregorio de Guzman
was also in the office, he reminded the recorder, that he had a prior right to enter the governor's office than De Guzman, who had only recently arrived.
In my judgment, the conclusion in the majority decision that "The fact that Baluyot had already been called into the
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office upon the governor's first arrival and had withdrawn for a few moments to permit another person to have an interview was also calculated to put the
governor off his guard at the moment Baluyot rentered the office" must also be rectified. From the evidence, it does not appear that the initiative or the idea of
withdrawing from Governor Lerma's office at that moment had come from Baluyot but, on the contrary, it was the governor himself, as the majority decision says
verbatim, who "requested Baluyot to withdraw long.enough for the governor to confer with Antonino Aranjuez, the other caller to whom reference has been
made," in view of its having occurred to the governor that the interview which he was then having with the accused might be more extended than he had
expected. Moreover, in his testimony (rec. 215) relative to this incident, the accused said that, in his first interview with the governor after having protested that
he had nothing to do with Captain Velez' separation from the National Guard, the governor asked him: "Is our interview going to be very long, Mr. Baluyot? Do
you wish to give your turn to Mr. Aranjuez who has a short interview?" and he answered he had no objection to this; that in view of the governor's suggestion, he
went out of the office to say so to Aranjuez almost at the same time that the governor was calling him; and that he passed into the recorder's office.
Baluyot did not then of his own free will withdraw from the governor's office in order that in the meanwhile Antonino Aranjuez should enter in said office and have
a short interview with the governor. Nor can it be inferred that the governor was off his guard the moment the accused rentered his office from the fact that said
accused had withdrawn from the same office for a few moment. The inference is exactly the contrary because, the governor knowing the accused was waiting in
the recorder's office so that Aranjuez should finish his interview, he must have been aware that the accused was going to return in his office as soon as Aranjuez
should go out. In a word, the governor
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must have been waiting f or Baluyot in his office, immediately after Aranjuez departed therefrom.
In the same decision it is said that in the testimony given by Baluyot, mention is made of a circumstance seemingly to the majority of importance regarding
Governor Lerma's defenselessness when Baluyot, after asking him for his revolver, drew his own and fired. According to the decision, Baluyot said, "That while
he was sitting in the recorder's office, awaiting the arrival of Governor Lerma, Paulo Venegas, a guard attached to the provincial jail, came up and after speaking
in a low voice with the recorder, entered the governor's office and presently emerged bringing a revolver and some cartridges. Baluyot noticed that the revolver
was discharged and remarked to the person having it in hand that an unloaded revolver is less useful even than a cane. The guard replied that he was not the
person charged with loading it, but was going to take it out to be cleaned, whereupon he disappeared carrying the revolver with him." And the majority infer that,
naturally, from the foregoing fact Baluyot must have supposed that the revolver seen by him was a weapon commonly kept in the governor's office and that the
latter upon arrival would be unarmed in his office, unless he should possibly bring a revolver upon his person, and they concluded that this circumstance
showed that the word directed to Governor Lerma immediately before the fatal attack against him were intended to discover whether Governor Lerma was in
fact unarmed, and that, upon discovering that Governor Lerma did not have his weapon at hand, the accused at once drew his own weapon and fired, and that
Baluyot therefore knew Governor Lerma to be unarmed and practically defenseless, and it is plain that attack was not begun until the assailant was fully assured
upon this point.
In fact, it appears in evidence, from the testimony of the accused, that after narrating the conversation which took place between him, the recorder, and the
other people in the office of the latter and what he saw and observed at
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that moment while he was in said office and before Governor Lerma's arrival, he said that Paulo Venegas, the warden of the provincial jail, entered the aforesaid
office where they were, and after whispering some words to the recorder, the latter went into the governor's office returning therefrom with a revolver and some
cartridges which he delivered to said warden; that as the latter stayed for a while near them, pulling the trigger of the revolver which was discharged, he
remarked to the warden that an unloaded revolver is less useful even than a cane, and the warden replied that he was going to take out said weapon to be
cleaned. But. in his testimony as witness for the prosecution, and before the accused had testified in these terms in his own behalf, (for he testified when the
defense offered their evidence) the recorder Gonzalez himself said (rec., 83) that in that morning the warden of the jail took from him a revolver, before the
accused first met or interviewed the governor; and that the accused was present when he delivered the revolver to the warden; and (in answer to a question
propounded upon him by the court) that said revolver belonged to the warden, because when the latter and the governor returned from Manila, it was left in his
care.
It follows, therefore, that, if the accused saw or believed to have seen the recorder taking the revolver f rom the governor's office before delivering it to the
warden, the truth was that the recorder had in his care the revolver which did not belong to the governor but to the warden, who took it with him upon leaving the
recorder's office to have it cleaned, as the warden himself has testified. From the fact that the warden, upon leaving the recorder's office, took with him said
revolver, which he had received from the former (as said warden testified that it was given to him) even if the accused must have supposed that said revolver
was a weapon commonly kept in the governor's office, it cannot be said that same accused might have also supposed that the governor upon arrival would be
unarmed in his office; because, as the same decision says the governor could have possibly brought a revolver upon his person, and Ba-
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luyot could have very well believed this since he was also carrying his. Moreover, what must be inferred from the very fact that the accused had mentioned in his
testimony this circumstance (that he had seen a revolver given by the recorder to' the warden which, according to the accused himself, the recorder took from
the governor's office) without having been questioned upon this fact but which he spontaneously gave when he referred, among other things, to the
conversation which took place between him and the people in the recorder's office and to the things he saw therein while waiting for the governor, appears to be
that the accused did not take advantage nor tried to take advantage of what he had seen; i. e., that the revolver, which the warden took out with him was not in
the governor's office at the time he attacked the latter; because, if it had been so, he would not have made mention of said revolver in his testimony, nor that the
recorder took it from the governor's office and gave it to the warden, as he was not examined upon this point when he was testifying. Said statement was
spontaneously and voluntarily made by him, and it is natural and even common sense that, if he wanted to take advantage of what he had seen and he was
sure that said revolver was no longer in the governor's office, he would not have asked the governor any more of his revolver (as the witness Gregorio de
Guzman has said) before firing his own revolver at him. This shows that he had not been aware of that fact, otherwise he would have hidden and denied it in his
testimony even if he had been examined about it, instead of referring to it spontaneously and voluntarily as he did.
In narrating the facts which took place between the governor and the accused while they were alone in the office of the former when said accused fired his
revolver at said governor, already mentioned, the majority decision says that the second shot should apparently have entered from behind the victim. And
although same decision goes on to say that this point is of little importance, inasmuch as it is obvious that Baluyot was the aggressor throughout and
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that the second shot was fired at an unarmed man whose only purpose was to effect an escape to a place of safety, the consideration of such a circumstance
has undoubtedly influenced the mind of the majority (as the other circumstances mentioned in said decision) in determining that the means and methods
employed by the accused in attacking and killing Governor Lerma were treacherous. It is beyond all doubt that Governor Lerma was sitting in the chair which
was in front of his desk (marked with the number 2 in the plan Exhibit B) somewhat reclining backwards in said chair, and that when the accused fired the first
shot he was in f ront of the governor who must have also immediately stood up from his seat, directing himself towards the corridor which was on the left side of
the seat or chair where he was sitting. The first shot struck the superclavicular region or the frontal region of the right shoulder blade of the victim, passing
through the aforesaid part of the body (as the majority decision says), and penetrating the back of the chair in which the governor was sitting.
According to Antonino Aranjuez who, upon hearing the first shot, entered the governor's office, placing himself at the side of a screen which was before the door
of said office, (marked with the letter "m" in the plan Exhibit B) from said place he saw the accused fire the second shot with his revolver at the governor who
was at this moment fleeing towards the corridor, and was at the point marked with the letter "n" in said plan, with his right hand raised to his right shoulder, the
accused being then at the point marked with the letter "" in same plan, and the governor's face was turned in the direction of his flight, towards the corridor or
the southeastern part of the building, just by and towards the right side of the accused who was in front of the governor, and he (Aranjuez) thought that the
governor could have seen what Baluyot was doing. The majority decision says, regarding this particular, that the witness Aranjuez makes it clear that as the
matter presented itself to his eye, the governor was fleeing with his right side, rather than his front, exposed to Baluyot.
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Dr. Bonifacio Mencias, the sanitary official of Bataan, who examined the governor's wounds five minutes after they were inflicted .and while the victim was yet
living, says, in the medical certificate which he gave on that same day, August 3, that he found in Governor Lerma's body the following wound: "Two wounds
inflicted with a firearm in the region of the upper-right clavicle coming out of the region of the right shoulder-blade a wound coming out (?) in the region of the
right temple. The first two wounds are not mortal, but the third was mortal, it having penetrated the cerebrum." At the hearing same Doctor Mencias, testifying for
the prosecution, said that Conrado Lerma had three perforating wounds and were located: one in the head entering the right temple and coming out of the left
side, and the other in the right shoulder coming out of the shoulder-blade of the same side. In this same testimony he went on to say that Governor Lerma's two
wounds in the right shoulder had entered from in front and had come out from the region of the shoulder-blade (rec., 19) ; that in his judgment the shots which
the governor received in his right shoulder were fired in front of him (rec., 27) ; that one of said wounds must have been received by the governor while he was
sitting; that one of said wounds was one and one-half inches from the other (rec., 28). In explaining why there was but one hole at the back of the chair (c) of the
plan Exhibit B, where the governor was sitting in spite of the fact that near the governor's right shoulder there were two wounds with four holes (two exit wounds
and two entrance wounds), the same Doctor Mencias said that he believed that one of the wounds in the right shoulder must have been inflicted upon the
governor when he arose from his chair. And when he was asked by the court "You testified that those two wounds in the right shoulder could have been inflicted
from the governor's front, what do you mean in using the word front?" he answered: "I mean to say that he received the wounds while he was in front of the
assailant" (rec., 29).
From an examination of the plan Exhibit B, it appears
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that if the accused was at the point marked with the letter () and Governor Lerma was going towards the corridor being at the point marked with the letter (n)
when the former fired the second shot at the latter, (as it has been said Aranjuez had seen it), the projectile of the second shot could not have entered in the
region of the upper-right clavicle or the region in front of the right shoulder-blade and coming out of the region of the shoulder-blade (scapula) or the victim's
back of the same side, but just the reverse, for according to the position in which the governor was at that moment (facing the corridor towards which he was
going, as it was stated by Aranjuez), a straight line drawn from the point (), where the accused was, (according to Aranjuez himself) to the point (n) where the
governor was (according to same witness), must terminate, not in front or in the front part of the victim, but precisely in the right side of his back or the back part,
and therefore the bullet of the first shot must have entered here and must have come out of the region of the upper-right clavicle or the front part of the body of
said victim. Moreover, each of the holes where the projectiles entered, according to an express testimony of Doctor Mencias, was in the region of the upper-right
clavicle or the region in front of the right shoulder-blade, near the right shoulder, in front of the victim; and each one of the holes where said projectiles passed
out was in the rear part of same shoulder or the region of the right shoulder-blade, with the circumstance, furthermore, that between the two wounds in said
region of the upper-right clavicle, or the region in front of the right shoulder-blade, there was a distance of one or two inches (according to the majority decision,
when it mentioned the wound produced by the second shot). These are very evident proofs that the first two shots were fired by the accused when Governor
Lerma was in front of him.
However, the majority decision says that the inspection made by this doctor may have been superficial, and his opinion may have been partly a matter of mere
inference from his information as to the general features of the
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tragedy, and that at any rate he does not state any particular from which it could clearly be discovered that the second shot entered the front. I do not believe
that more details are necessary, nor that there' are clearer details than those given by Doctor Mencias in this inspection (rec., 2) and in his statements found and
can be seen in the cited pages of his testimony. It is also evident that the inspection of the doctor aforesaid has not been superficial; nor is there any reason to
believe that it has been so; nor is there any evidence to support such a supposition; and it cannot be supposed that his opinion may have been partly a matter of
mere inference from his information as to the general features of the tragedy, because, as has already been said, said opinion has been the result of a material
inspection of the victim's body and the wounds themselves conducted by said doctor; i. e., what his eyes have seen. This inference or supposition could have
better been applied to Aranjuez' testimony because same was in open contradiction with the reality and referred to an instance when said person was not in
possession of a serene spirit sufficient to understand that which his eyes saw. In fine, the following is the testimony of Aranjuez in answer to the questions of the
Court respecting the particular in point, as it appears in the stenographic notes (rec., 126) :
"COURT. But, at the moment the second shot was fired, what part of the body of the accused was facing towards Governor Lerma and what part of the body of
the latter was facing towards the accused?
"WlTNESS. I saw Governor Lerma running towards the corridor in this position. (The witness arises from his seat, looks towards the southeastern part of the
building or the court room and continues saying) When the accused fired the second shot at the governor he was looking at him, so that the accused was facing
the governor.
"COURT. What the court wants to say and wants to know is: when the accused fired the second shot at the governor, in what position was the latter in relation
with the formerwas he in front, sideways or at the back?
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"WlTNESS. He was almost sideways and he was on Captain Baluyot's right side which was facing the governor."
So Antonino Aranjuez first said that when the accused fired the second shot, he was facing and looking at the governor, but afterwards, when the court asked
him the second question in a very clear and precise term, as it appears, he answered what has already been said, namely that the governor was almost
sideways and over the right side of the accused which was facing the governor. These contradictory answers give the measure of credit which such a witness
for the prosecution deserves. And it is very clear that from his testimony it cannot be inferred that the second shot must have manifestly entered from the
governor's back, as it is stated in the majority decision, but that it must have entered in accordance with the result of the examination conducted by Doctor
Mencias and what the latter had clearly and explicitly testified to at the hearing, namely, that the second shot entered from the front of the victim about one or
two inches from the wound inflicted by the first.
Expressing himself why he wanted to have an interview in the morning of the aforementioned day, August 3, with Representative Reyes and Governor Lerma,
the accused said that he wanted to take leave with them and to tell them that he has given up the fight between them and to pray them that, if possible, they
should leave him in peace and stop persecuting him when he shall have settled in Cebu. According to the accused when he first met Governor Lerma that
morning, the first question he asked the latter was whether Representative Reyes was in Bataan, to which the governor answered that he did not think so; that
he wanted to avail himself of the presence of Representative Reyes in order to take leave f rom them at the same time; that the governor asked him why he
intended to leave and he answered that he was planning to have a trip but that above all he wanted to tell them some words, and then the governor said that
which has. already been mentioned before, "I can almost guess what you want to say to me," and the dialogue
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continued between the two until at the request of the governor, who thought that the conference between them would continue longer than what he has
expected, he (the accused) retired back to the recorder's office in order that Antonino Aranjuez could confer with the governor, and to resume the conversation
between them after Aranjuez should have finished.
The wife of the accused as well as the accused himself must have knowledge of the projects of the latter touching upon what was convenient for the common
interest and for the particular interest of each of them. In No. 152 of the daily newspaper, La Vanguardia, dated August 7th, 1918, which was presented at the
hearing as Exhibit 2 for the defense, one of the reporters of said paper, Eusebio Reyes (the same man, who having been in the jail at Balanga at the first hours
of August 5, published. in Nos. 150 and 151 of said paper, corresponding to Monday, the 5th, and Tuesday, the 6th, of the aforementioned month, which have
been presented as evidence for the defense, a report of the different details of the crime of which Governor Lerma was the victim) amplifying said report,
mentioned the conversation he had with the wife of the accused Baluyot in the house where she was living in this capital concerning the incident and, among
other things, according to said report, said wife told him, as it appears on the 4th page of said paper, the f ollowing:
"His trip (Baluyot's) to Bataan would have been the last at present until after a long time, for we had been planning to reside in Cebu with my brother."
When Baluyot's wife expressed herself in these terms to the reporter Reyes, she has not seen her husband after the lamentable incident happened and the
accused has been arrested and imprisoned in the provincial jail at Bataan, for according to her own statement to the reporter aforementioned she had only
known what happened between her husband and Governor Lerma thru the report published before in the same newspaper La Vanguardia and she wanted
(while she was talking with the reporter) to be at
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the side of her husband so that she could give him a bed, food, and whatever he needed to the end that the lonesome hours of his imprisonment might not be
very bitter to him, especially when she heard that her husband's hands and feet were chained as if he were a common f elon and that he was not allowed to talk
to anybody. This is an evident proof of the truth of the statement of the accused regarding his proposed trip to Cebu, which impelled his desire to have an
interview with Representative Reyes and Governor Lerma in the morning of August 3, because when the wife of the accused made that statement to the
reporter Reyes, she has not yet been in communication with the accused, nor has she talked with him. And if the report (given in Nos. 150 and 151 of the
newspaper La Vanguardia, by the reporter Eusebio Reyes, as a result of his interview with the accused in the jail at Balanga and with the recorder Gonzalez and
others who were afterwards called as witness for the prosecution) has been presented by the latter in evidence, it is not reasonable nor just to disregard what
appears in the statement made by the wife of said accused to the same reporter, Reyes (and which appears in No. 152 of the aforesaid paper, presented as
evidence for the defense), concerning their proposed trip to Cebua f act which, on the other hand, has not been contradicted at the hearing.
It cannot, therefore, be affirmed, as the majority decision does, that no very satisfactory explanation has been given by the accused as to the reason for his trip
to Orion and especially to Balanga that morning. And even supposing it as true that the accused must have been entertaining a thirst for vengeance and
resentment towards the governor for the motives mentioned in the majority decision, and for which the accused has given a sufficient idea when he referred to
the dialogue which took place between him and the governor at the time he first entered the office of the latter, nevertheless from said motives it cannot be
inferred that the conclusion is irresistible that he was carried to Balanga by a thirst f or vengeance or that he has determined to kill
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the governor, (as is stated in the majority decision), when he went into said office in that morning.
In order to arrive at such a conclusion the majority have also taken into consideration the fact that on July 14, 1918, being, says the majority decision, fully
imbued with the idea that Governor Lerma was persecuting him and attributing to the machinations of said governor his prosecution for the crime of estafa in the
Court of First Instance of the city of Manila and his having been requested to resign from the position of captain in the National Guard, the accused in the course
of a conversation with one Pedro Magajes, a friend of his, had said to the latter that Governor Lerma would pay for the misfortunes ortunes that were bef alling
him (Baluyot) ; and that also, on a Friday in, the month of August, prior to the commission of the crime, the accused met his compadre, called Domingo Lintag,
and upon shaking hands he (the accused) squeezed his hand tightly and said: "May be this is the last time that we would shake hands."
Upon testifying, Pedro Magajes in fact said that, when he met the accused on the aforementioned day, July 14, in the railroad car which was bound from Manila
to Guagua with the object of afterwards going to Balanga, he asked the accused what had become of the charge of the National Bank against him for the crime
of estafa, and the accused told him that it was going on well and that he admired the conduct of Lerma, Sr., (or of the governor's father), and that he detested
the conduct of Lerma, Jr., (or of said governor) ; that the governor did not know that he (the accused) was still worth something in Bataan, and that some day
said governor would pay for the things that have befallen upon him. Moreover, when the fiscal examined said witness he answered the following:
"Q. Who is still worth something in Bataan?A. Sr. Baluyot.
"Q. And who will pay some day?A. According to my belief, it is Mr. Conrado Lerma.
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"Q. And why would Mr. Conrado Lerma pay?A. I thought it was a political question and that the accused would work against Governor Lerma, because said
accused said, 'Governor Lerma does not know how much I am still worth in Bataan and f or the things that he is doing against me he will pay some day;' and
afterwards I changed the conversation because Mr. Baluyot was somewhat grieved.
"That's all." (Rec., p. 169.)
In his testimony, Domingo Lintag also said that on a Friday, the 2nd of said month of August, he met the accused in Orion, and that when they shook hands the
accused said, "May be this is the last time that we would shake hands," squeezing his hand tightly. Moreover, after ,the witness had been cross-examined by
counsel for the defense in order to impugne his credibility, said counsel asked that it be made a part of the record that said witness, upon leaving the witness
stand, had approached him on passing by his side, and had said in a loud voice these words, "In fact I don't know anything." The judge immediately replied that
he had, not heard the witness say these words, and denied counsel's petition, adding, however, that the witness could be recalled and asked new questions if
counsel for the defense so desired. When Domingo Lintag was recalled, he answered in the following terms the crossquestions asked then by the same counsel
and. the new questions of the Fiscal:
"ADDITIONAL CROSS-QUESTIONS BY ATTORNEY SOTTO.
"Q. I'll talk to you slowly so that you may understand well. Tell us whether it is true or not that when you went down from the witness stand upon passing by my
side you told me in a loud voice 'Wala po akong talagang nalalaman,' which in English is, 'ln fact I don't know any thing.'A. Yes, Sir.
"That's all."
"NEW QUESTIONS BY FISCAL TUASON.

"Q. What do you mean by that?A. That I don't know all the questions propounded to me.
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"Q. To what questions do you refer?A. That I don't know anything more than what I have said.
"That's all." (Rec., p. 182).
From the f oregoing, the accused, in his conversation with Pedro Magajes on the occasion referred to by the latter in his testimony, did not utter any threat of
death nor of any personal injury upon Governor Lerma, but that, when he said that some day Governor Lerma would have to pay for the things that have been
befallen upon him, he meant, as said witness understood it, that there were political questions between him (the accused) and said governor and that he (the
accused) would work against the latter because he was still worth something in, Bataan. Certainly, what the accused then said in connection with the governor
can not be given other interpretation or different meaning than that given by the witness aforementioned. Concerning the other witness, Domingo Lintag, he has
been very explicit and definite upon answering the additional cross-question of the counsel for the accused and the new questions of the fiscal propounded, on
him at the end of his testimony and inserted above. First, he answered in the affirmative to the question whether or not it is true that when he went down from
the witness stand he told said counsel upon passing by his side in tagalog, "In fact I don't know anything." And afterwards when the fiscal tried to make clear
said answer, he said that he did not know all the questions propounded on him, that it is almost unnecessary to deal with, nor to give any importance of, what he
himself has testified to, to the effect that the accused told him that perhaps -(referring to the date when he met the accused in Orion) it was the last time that
they would shake hands. From the testimony of this witness, nothing in reality can be inferred which may be useful for the object of the prosecution and for the
object he has been presented, because the fiscal himself did not secure from said witness an answer other than that he did not know anything more than what
he had said, in spite of the effort on his (fiscal's) part to neutralize the effect of the answer given to the last cross-question of the
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counsel for the accused and to the last-mentioned question of the fiscal, wherein said witness showed ignorance of everything.
But even admitting that in fact the accused, squeezing tightly his hand, said to the aforesaid Domingo Lintag, on the occasion mentioned by the latter, that
perhaps that was the last time that they would shake hands, and that, according to the majority, it showed that the accused contemplated some occurrence
which would have grave consequences to him, nevertheless it is clear that it can also be interpreted with greater reason in the sense that having proposed to go
to Cebu and because in that same morning he was going to take leave from Governor Lerma and Representative Reyes, the accused was also taking leave
with his compadre, Domingo Lintag. In conclusion, from what has been stated by said witness nothing definite and conclusive can be inferred for the purpose of
considering as proven that in that morning the accused had conceived the idea, of killing Governor Lerma when he went into the latter's office. There is not a
single evidence to show that the accused (as the majority decision says), for several days prior to the perpetration of this murder, had determined to seek an
interview or encounter with Governor Lerma regardless of consequences. This conclusion has no other basis than mere inferences from the testimonies before
mentioned and from the fact, also mentioned in the majority decision, that the accused asked more than one person with whom he had met that morning and
several days before if they thought he was in Bilibid intimating also that such a rumor had been circulated by Governor Lerma. May be the mind of the accused,
as the.majority say, was fixed upon Governor Lerma as the supposed author of his wrongs. But the fact is that before August 3 the accused had not told
anybody that he wanted or had decided to have an interview with the governor, and only on said day did he communicate such idea to the people who were in
the recorder's office that morning. If several days before he had intended to meet the governor, the accused did not show any exterior sign of
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that intention, much less was he determined to seek that interview regardless of consequences. On the contrary, according to the recorder, while he (the
accused) was waiting for Governor Lerma in the recorder's office, he was in good humor, and according to same recorder and, Antonino Aranjuez, who were
also in said office while the accused was with them, he continued to be in good humor before his first interview with the governor as well as after it, when he
retired to allow Aranjuez to enter and have a short interview with said governor and before he rentered said office. Upon the governor's arrival in the recorder's
office that morning he and the accused greeted each other in a friendly manner by shaking hands. No one noted any change nor alteration in the face or attitude
of the accused then; and during the two hours, approximately, that he was in the recorder's office, from his arrival until he rentered Governor Lerma's office, the
accused showed no impatience either because he wanted to stay with the governor in his office or because he wanted to have with the latter the interview he
desired; for, as has been said. before, he agreed to yield his turn for a moment to Antonino Aranjuez at the request of the governor himself.
In fine, there is nothing in the record to show or to point out that the accused (even admitting that his mind was fixed upon the governor as the supposed author
of his wrongs, as it is stated in the majority decision) was intending at those moments to execute any aggressive act against said governor.
After dealing with the assertions and conclusions which has already been mentioned, the majority decision says that the conclusion of the trial court that the off
ense was characterized by known premeditation is by no means without support in the evidence. However, same decision states.that, as an express ruling on
this point is unnecessary to the disposition of the case, the Justices subscribing said decision concede to the accused the benefit of the possible doubt, and
accordingly they refrain from making any express finding as to the presence of said element. Supported by the evi-
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dence in the case, it can be affirmed in this dissenting opinion, for the reasons already mentioned, that the offense is not characterized by known premeditation
and, to the writer's regret, the absence of an express finding as to the presence of said element in the crime and the majority's concession to the accused of the
benefit of the possible doubt as to the presence of said element, in spite of the assertions and conclusions assigned in said decision relative to this particular,
constitutes another reason for not considering' that in the commission of the crime there has been present the qualifying circumstance of alevosa (treachery).
And the reason is obvious. If the accused has been entertaining a rooted rancor and resentment in his mind against Governor Lerma, and for several days prior
to the perpetration of this murder, has been determined, according to the majority, to seek an interview or encounter with him regardless of consequences, upon
his interview in the morning of August 3 when he then killed said governor, the natural and logical thing was or should be that he would have employed means,
methods, or f orms that were intended to insure the execution of said object without any risk to himself arising from the . defense which Governor Lerma could
make in that interview. If the preconceived, deliberate, and premeditated design for the perpetration of this murder at said interview is not considered as proven,
or, at least, if the benefit of a possible doubt as to the presence of said design is conceded to the accused, necessarily it has to be recognized that it is also
doubtful that the accused had intended to insure by any means the execution of his criminal design without any risk to himself arising from the defense which
the offended party could make. In the estimation .of the existence of the aggravating circumstances of known 'premeditation and alevosa (treachery) in the
instant case, there is such a relation in the facts adduced in evidence at the hearing for the determination whether or not said circumstances were present in the
commission of the crime imputed upon the accused, and it is so clearly gathered from all that has been said and argued in the majority decision upon dealing
with
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said facts, that it is difficult, if not impossible, to conceive that the accused had acted treacherously in killing Governor Lerma, without having premeditated,
deliberated and reflected upon said act bef ore its execution. If there was then no known premeditation, there could not be alevosa. This does not mean that in
all cases where the first of said, circumstances is not present in the commission of the crime, the second should not or cannot be considered as present; but it is
undeniable that there are cases where, the former not being present, the latter cannot be considered as present. Such has been recognized by this court in its
decision in the case of United States vs. Balagtas and Jaime (19 Phil. Rep., 164), holding the following:
"MURDER; ESSENTIAL ELEMENTS OF 'ALEVOSIA.'When the record contains no evidence showing that the accused had, prior to the moment of the killing,
resolved to commit the crime, or any proof that the death of the victim was the result of meditation, calculation or reflection, the alleged qualifying circumstance
of alevosa can not be considered."
This holding is exactly applicable to the instant case.
The first meeting between the governor and the accused having been suspended, not by the latter's will but by the request of the f ormer to whom it occurred
that the interview between them might be more extended than he had expected, it is natural that, upon seeing each other again in the office, they would have
resumed the conversation which was interrupted moments before. Therefore, it is probable that the governor might have begun-asking Baluyot where he said he
would go, and that the dialogue mentioned by the accused in his testimony might have taken place between them, a dialogue which, as it can be tested with a
watch on hand, could not have lasted one minute or more. On the contrary, it is improbable that when the accused rentered the governor's office and as soon
as he reached the governor's desk (coming from the recorder's office, covering in two seconds the distance of 10 paces of between said offices, as the recorder
Gonzalez has said) and without saying any word to
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said governor, he fired the first shot at him, a fact which has been contradicted by Antonino Aranjuez and Gregorio de Guzman, who were then with said
Gonzalez in his office and heard Baluyot call out to the governor before the first shotone of them heard Baluyot call out "governor," and other, "governor, may I
see your revolver?". The testimony of these two witnesses, especially that of the last, is another reason for believing with some foundation that the governor and
the accused then talked of something, or, what is amount to the same thing, that there might have been between them a short dialogue, and that in view or as a
consequence of it, that sad and unfortunate event took place. That Aranjuez, De Guzman and Gonzalez, who were in the latter's office had not heard said
dialogue, or had not heard what the governor and the accused were talking about, is no proof that same had not taken place, because as it can be seen on the
plan Exhibit B, from the door of the recorder's office to the place where Governor Lerma and the accused were, there was a distance of 8 meters and 30
centimeters, or all the length of the governor's office; from the place where Antonino Aranjuez was, or that marked with the letter Y in the plan, to the place
where Governor Lerma and the accused were, there was distance equal to the length of the governor's office, 8 meters and 30 centimeters plus the length of
the recorder's office, 5 meters and 96 centimeters, according to same plan, which, to be sure, has been traced by the provincial assessor himself, Gregorio de
Guzman, making a total of 14 meters and 26 centimeters. And that, according to this same witness, when he heard the accused call out to the governor "May I
see your revolver?" he was taking leave with the recorder and was leaving the latter's desk bound for his office, and as he was going towards the door to leave
the office, he did not understand the other words of the accused, who was then speaking in a natural voice, which showed no sign of alteration, adding that he
heard those words when he was going out towards the corridor and for this reason he could not tell whether the governor answered the accused or not. With all
these it should be added that (from what
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has been said by the recorder in his testimony, rec., p. 86) when he heard the first shot, the door between his office and that of the governor "was almost closed,
because one-half of it was closed," a circumstance which should be taken into consideration in determining whether or not those who were at that moment in
the recorder's office (the recorder, Aranjuez, and De Guzman) were in such a condition as to have been able to hear what the governor and the accused were
talking about. The one who was in a better condition for said purpose was precisely the recorder Gonzalez, because he was sitting by the desk in his office near
the door of the governor's office, and from there he did not move until he heard, as he said, the first shot. Nevertheless, unlike Aranjuez and De Guzman, who
said that they have heard the accused utter the words already mentioned, Gonzalez did not make any mention about this, stating, on the contrary, that only two
seconds elapsed from the moment that the accused reached the governor's desk coming from his office until he heard the first shot. So that, according to said
wifness, there was no sufficient time whereby there could have been an exchange of words between the governor and the accused. Necessarily, the recorder,
Gonzalez, has not told the truth. His other two friends have contradicted him and there are sufficient reasons to believe that the former in turn, being able to tell
the truth, have not said all that they knew, or that, because of the distance of the place where they were from that where the governor and the accused were
talking, and because one-half of the door of the governor's office was closed, they could not hear other words than what, according to them, was uttered. by the
accused. In any way it cannot be denied that when the accused, being near Governor Lerma, called out "governor," as Antonino Aranjuez heard it, and called
out "governor, may I see your revolver," according to De Guzman, the governor and said accused must have been talking about something related to what they
have been talking about moments before, or at the first interview. The word "governor," spoken by the accused in a high and dry tone, may mean, or
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could have been, an exclamation of the accused, as well as a call of the attention upon the governor to tell him something. It appears that the words "governor,
may I see your revolver," which De Guzman heard, must not have been spoken by the accused immediately after he has approached the governor's desk and
prior to an exchange of words between them before, because the conversation which they must have then was a continuation of the former one which have
been interrupted after the accused had protested that he had nothing to do with the separation of Captain Velez from the National Guard, which was attributed
to him by the governor. Those words could have also been spoken by the accused as a result or by reason of what he and the governor continued to talk about,
namely, the governor's intervention upon the misfortunes of the accused as alleged by him and something connected thereto. For it is inconceivable why the
accused would have been willing to see the governor's revolver, unless it is because he (the accused) wanted to challenge the governor, believing that the latter
has offended him. According to the accused, when he rose from his chair as soon as he was offended by the governor, who said that he could cheat better in
Cebu, he told the governor: "May be your revolver and mine have the same calibre." These words are, in some respects, similar to those which the witness De
Guzman understood or heard spoken by the accused expressing his desire to see the governor's revolver. But, in any manner, what is certain and positive is
that the accused,, before firing the first shot at the governor, gave the latter a hint that he intended to do something which might have caused him (governor)
some personal harm, and the governor must have also understood it in this manner, for he knew that they, the two, were enemies, as he himself had said to the
accused moments before and that he had before him one whom he considered his enemy and with whom he had also behaved as an enemy. Therefore, the
situation in which they were f found at that moment was very clear to the governor as well as to the accused. If the accused was entertaining an ill feeling
towards Conrado Lerma because the latter
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had been one of his competitors for governorship at the 1916 general elections and because he was then defeated by said Lerma, as well as because he
thought that said Lerma was instigator of the criminal proceedings for estafa against him, Lerma in turn would not forget that the accused was one of his
competitors in said election and, having been defeated by him, was a person dissatisfied to him in the province under his control, and as such could have some
day planned to discredit or to cause him some damage. As a matter of fact he (Lerma) was attributing to the accused the separation of his compadre Velez from
the National Guard, for which reason he believed, as he made it appear to the accused, that everything he could have done against the latter was justifiable.
Two enemies were face to face on that occasion, although socially they treated each other as friendsone, the vanquished, the humiliated Baluyot, and the
other, the victor, Governor Lerma, the chief of the province, exercising authority in the place where they were and to whom, like Representative Reyes, the
accused had come to implore that, if possible, they should leave him in peace and should not persecute himwhich is certainly probableand to bid them
farewell for he was going to Cebu. From those circumstances, it is perfectly conceivable that a gesture, a look, any action whatever of Governor Lerma which
the accused would have considered depreciatory and humiliating to him, would have been sufficient to provoke the anger of said accused and to impel him to
attack the former, because it should not be overlooked that the accused. in his testimony (rec., 225) has said the following: "When I warned him to prepare, he
was sitting, speaking in that manner of his and laughing at me." There is nothing strange in that the accused, considering himself offended and humiliated by
Governor Lerma upon seeing the attitude of the latter, his manner of speaking and that he was being laughed at, would endeavor to avenge on that same
moment an offence which was being committed. upon him. When the accused, upon entering for the first time Governor Lerma's office, told the latter that he
was going to take leave from him and
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Representative Reyes for he was going to Cebu and to implore them that, if possible, they should leave him in peace and should not persecute him in said
province, Governor Lerma has expressed himself in the sense that, they being enemies, he (Lerma) was justified in his conduct towards him, thereby showing
that the accused could not hope for the peace and tranquility which he was desiring. This expression shows that the governor was not accepting the request of
the accused with benevolence, but that, on the contrary, he was refusing to make peace with the accused. And what has been said by the accused on this
particular is verosimil. No one has contradicted it at the hearing, there being, instead, sufficient grounds for believing that it was true, because it was the cause
of the interruption of the first interview between the governor and the accused at the request of the former, to be resumed afterwards, as in fact it was resumed,
and it was a beginning of what must have taken place between them at the second interview.
The terms used by Governor Lerma in his conversation with the accused, even admitting that it was not true that he said to the latter that he could cheat better
in Cebu, may be considered not of such a character as to justify that the. accused has acted upon an impulse so powerful as naturally to have produced passion
and obfuscation. But it is indisputable that they might have been such as to provoke the accused to execute an offensive act or an act of personal aggression
against the governor. The two were on that occasion, commonly speaking, playing with fire (jugando con fuego), and a spark coming from any one of them was
sufficient to cause a conflagration. Of this conflagration not only the accused must be blamed. His testimony, given at the hearing under oath when testifying as
a witness, has as much value as that of any witness, and same must be taken into consideration in connection with the other evidence adduced at said hearing.
The only persons who have testified to what took place between the accused and the governor at the time when the two were alone in the office of the latter, are
the recorder Gonzalez, Antonino Aranjuez,
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and the provincial assessor, Gregorio de Guzman. We are already acquainted with their testimonies limited, as has been seen, to the time, according to them,
that elapsed between the moment the accused entered into the governor's office and that when they heard the first shottestimonies in which two of them said
that they have heard the accused call out to the governor and in which Aranjuez said that he has seen them (accused and governor) when he peeped into the
governor's office after the first shot.
In reality, the testimonies of the said three individuals have not been useful in any manner whatever, as has been already shown, to prove that before the first
shot was fired by the accused the conversation mentioned by the latter did not take place between him and the governor. All that said witnesses testified to,
concerning this particular, has been based only upon a computation, as has already been said, made by each of them of the time intervening between one
moment and another, a computation which is inconceivable to serve as a basis for establishing the conclusion that the accused unexpectedly, suddenly, and
instantaneously attacked Governor Lerma as soon as he approached him in his office, asked for his revolver and saw that he was defenseless, firing at him the
first shot, i. e., that the accused made the attack treacherously.
The majority decision says that the offense committed in this case exhibits features markedly similar to those which characterized the crime which was the
subject of prosecution in United States vs. Gil (13 Phil. Rep., 530) and, in the f ollowing lines, that the offense here committed was properly qualified by the trial
judge as murder, in which was present the qualifying circumstance of alevosa. With this statement said decision has made it understood that what has been
said and held by this High Court in that case is applicable to the present case on account of their similarity. The similarity between these two cases lies in that in
one and the other the victim had been a provincial governor and the crime had been committed in a provincial building or in the place where said provincial
authorities were exercising
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their functions. But in the case, U. S. vs. Gil, the latter, or the accused, alleged in his defense that, without the least provocation on his part, Governor Lopez,
whom he asked for the favor of a license for the revolver he was carrying with him, answered him in an insulting manner, upbraiding him for his temerity in
seeking a favor of a man who he had denounced to higher authority and that the governor having reached for the revolver, a struggle between them ensued
during which the shots that wounded the governor were fired. Not having immediately died as a consequence of said wounds but after 24 days, Governor Lopez
had the opportunity to contradict and did flatly contradict the accused, denying that he provoked and insulted the latter. This statement was made by the
governor when about to breathe his last. And this dying declaration of the wounded man was taken into account by this High Court, in connection with the other
evidence adduced in the case, in order not to give credit to whatever the accused had to say for his exoneration of all that happened between him and the
governor when they were alone in the office of the latter and when said governor was attacked by said accused, Gil. In the decision of this High Court in the
aforementioned case, the following is said:
"If the account of what occurred in the office of the deceased governor on the morning of the 27th of December, 1907, as told by the accused when testifying in
his own behalf, be accepted as true, this testimony, taken together with the other evidence of record not in conflict therewith, would leave no room for doubt of
his guilt of the crime of unlawfully taking the life of Benito Lopez, deceased, the commission of the crime being marked with certain extenuating circumstances,
but unmarked either by 'treachery' (alevosa) or 'deliberate premeditation' (premeditacin conocida) as charged in the information; and as the slayer was alone
with his victim when the fatal shots were fired no eyewitness could be called to the stand to contradict the testimony of the accused as to what occurred in the
office from the time he entered until the explosion of the pistol
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shots attracted the attention of the other occupants of the building. In our opinion, however, the ante-mortem statement of the deceased, taken together with the
other evidence of record, conclusively establishes not only the falsity in all its essential details of the account of the tragedy given by the accused, but also the
fact that the crime was committed with treachery (alevosa) and deliberate premeditation (premeditacin conocida)." (Page 533.)
Now then, in the instant case Governor Lerma died approximately three hours after he has been wounded by the third shot fired by the accused, without having
been able to regain consciousness before his death nor to articulate any word; i. e., he (the governor) did not contradict the accused Baluyot nor did he
contradict the latter's account of what occurred between them in that morning during the short period of time that they were alone together in the office of said
governor. There being then in this case no ante-mortem statement of the deceased Governor Lerma, which may be taken together with the other evidence of
record, and if the testimony of the accused in his own behalf, taken together with said evidence, be accepted (if in the present case we apply, as it should be,
the ruling mentioned by this High Court in the case U. S. vs. Gil), accepting at the same time, as we should, the account of what occurred in the office of
Governor Lerma in the morning of the 3d of August, 1918, as told by the accused Baluyot, the guilt of the latter, as author of the crime of unlawfully taking the
life of Conrado Lerma, deceased, leaves no room for doubt, but unmarked either by treachery (alevosa) or premeditation (premeditacin) as charged in the
information. Therefore, beside the fact that there is no complete similarity between the case of U. S. vs. Gil and the present case, and applying in this case the
doctrine laid down by this court concerning the question of evidence in that case, it cannot be accepted as proved that the accused Baluyot acted treacherously
and with deliberate premeditation in taking away Governor Lerma's life.
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However, the accused Baluyot has been charged with some admissions alleged to have been made to the reporter of La Vanguardia, Eusebio Reyes, when the
latter had an interview with the former in the provincial jail of Bataan in the morning of August 5th (an information which was published in the corresponding
issues of said newspaper, marked Exhibits D and E of the prosecution) and to the lieutenant of the Constabulary, the commanding officer of Bataan Province,
Angel Labayan, in the afternoon of the same day, August 3d, in order to prove that said accused attacked Governor Lerma knowing the latter to be disarmed
and defenseless. The reporter, Reyes, affirmed that he has published in said newspaper, La Vanguardia, the information or news appearing in said two issues,
after he had a conversation with the accused in the morning of the 5th of August; and that, among other things (as it can be seen in the issue of the 6th of
August), the accused told him the following: "I asked Conrado about his revolver, but it is not true that he was reading when I fired at him, no. And that cannot be
true because I told him: 'Governor, defend yourself as you may. I come to kill you.' And I fired the first shot, then the second, one after the other." Lieutenant
Labayan, in turn, testified that in a conversation he had with the accused in the provincial jail, in the afternoon of August 3d, the latter related to him all that
occurred, and, among other things, that after the accused told the governor "You are taking advantage of all the opportunities to render me completely useless,"
to which the governor answered, "Were you, yourself, in our place, you would take advantage of all the opportunities to render an enemy useless," the accused,
upon hearing this phrase, got mad and asked the governor: "What calibre has your revolver?" to which the governor answered that he did not bring his revolver,
and then the accused, who was in an attitude of drawing out his revolver, said to the governor, "I will kill you now;" that the governor cried out calling the guard
and for the scream (so says) the accused fired his revolver at the governor.
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Without entering now upon the consideration (inasmuch as the majority does not say anything about it in their decision) of the question whether the inf ormation
published in the press about an event subject of a suit or a prosecution before the courts of justice may be utilized as an evidence at the hearing, (which is what
in reality has been done by the prosecution in presenting the reporter Reyes and in examining him about the information aforesaid) and admitting the testimony
of said reporter as that made by any other witness, what in reality is inferred therefrom is that Governor Lerma was not reading when the accused, fired at him
the first shot and that the accused, before firing said shot, warned the governor to defend himself as much as he could, because he was going to kill him. From
Lieutenant Labayan's testimony, it appears that the accused asked the governor about the calibre of his revolver and that the governor having answered that he
did not bring his revolver, the accused, who was in an attitude of drawing out his revolver, told the governor that he would kill him and, when the governor cried
out calling for the guard, fired his revolver. Above all it is rather strange that to the reporter Reyes, who was his friend (as they treated each other with familiarity)
and who was interested in giving in the newspaper, La Vanguardia, the most complete information possible about that sad event, the accused would not tell that
when he asked governor Lerma about his revolver he answered that he was not bringing it (as Reyes did not mention this particular in his testimony), while to
Lieutenant Labayan, who did not know the accused prior to August 3d, (for he happened to know him only on that day and when he had with him a conversation
in the afternoon of. same day in the provincial jail of Bataan, conversation referred to by him in his testimony) the accused would have made a revelation which
is so compromising against him as that he knew before he fired the first shot at the governor that the latter was not bringing with him his revolver. It should also
be taken into consideration that when the reporter Reyes had an interview with the
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accused in the morning of August 5th, there were present then, according to him, the Lieutenant of the Constabulary, Pedro Navarro, the provincial warden and
one constabulary soldier; and that when said Lieutenant Navarro was called to testify for the prosecution, he was not produced, as well as the other two
individuals who witnessed the aforesaid conversation between the accused and the aforementioned reporter, and who could have testified to what they have.
then heard. In referring to that incident the accused said, as it will be remembered, that he told the governor, "It appears to me that your revolver and mine have
the same calibre," and the governor answered, "No Sir, mine is 32," and that to this he replied, "It is the same and prepare yourself because one of us will have
to die." The accused did not say that the governor answered him then that he was not bringing with him his revolver. And it appears more proper that when the
accused asked the governor about the calibre of his revolver, as Lieutenant Labayan has said referring to the accused himself, the governor should have
answered what the calibre of his revolver was, namely, that it was 32 calibre, for the question of the accused referred to this. The answer that the governor was
not bringing with him his revolver would have been more appropriate to the question which, according to the reporter Reyes, referring to the accused, the latter
asked to the governor, because it was referring only to the governor's revolver. In spite of this fact, the reporter Reyes, did not say that the accused had stated
to him that the governor had given any answer to said question nor that the governor had said that he was not bringing his revolver. Lieutenant Labayan is then
the only witness who testified (referring himself to the conversation between him and the accused in the provincial jail in the afternoon of the 3d of August), that
the governor told the accused that he was not then bringing his revolver. By this testimony, said witness made it understood that the accused, before firing the
first shot at the governor, knew that at that moment the latter was without said weapon with which to
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defend himself. However, taken together with that of the other witnesses who testified to said particular, his testimony is not sufficient to prove, beyond any
doubt, that Governor Lerma answered the accused that he was not then bringing with him his revolver. But, taking due consideration to the testimony of the
reporter Reyes as well as that of Lieutenant Labayan and that of the provincial assessor, Gregorio de Guzman, in connection with what the accused testified to
about the revolver, it is indisputable that what in reality can be inferred and considered proven therefrom is that having asked the governor about his revolver
and having then told him his desire to know the calibre of his revolver, the accused warned said governor, before firing the first shot, to prepare and defend
himself as much as he could because one of them will have to die. In a word, before receiving the first shot fired at him by the accused, Governor Lerma was
able to look for his defense, had the opportunity to make good his defense from the danger that was threatening him because the accused himself had warned
him.
But, moreover, according to the testimony of the accused (rec., 219), while Governor Lerma was talking with him during the second interview, the former had his
left hand on the table and with it he was playing a brass knuckle (llave inglesa). This brass knuckle was seen on the governor's table by Lieutenant Navarro of
the Constabulary (who was then in charge of said force in the absence of the provincial commander) when, immediately after the accused was arrested and
imprisoned (whom he found between the door of the office of the recorder and that of the governor), he returned upstairs in order to learn something of the
incident and to see what happened to the governor. Said brass knuckle was kept by Lieutenant Navarro and presented at the hearing when he testified to the
particular aforesaid, and marked as Exhibit 1 of the defense. Although the recorder, Pedro Gonzalez, did not give a satisfactory explanation of the existence of
said brass knuckle on the governor's table, having said, moreover, that he had
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never seen the governor use it, and it is said in the Attorney-General's brief that said weapon might have been placed on the governor's table by the accused
himself as part of his plan for defense, the fact is that there is no proof about this allegation of the Attorney-General and that the brass knuckle was on the
governor's table when Lieutenant Navarro (who arrested the accused bringing him to the prison and whose veracity there is no reason to doubt) immediately
returned to the governor's office in order to see the latter and to learn what happened then (rec., 193-194).
It also appears from the evidence that when the tragedy occurred there was a long "cris" (dagger) on the top of the bookcase which was on the right side of the
governor's table and of the chair in which the latter was sitting, a bookcase marked with the No. 3 in the plan Exhibit B. Lieutenant Navarro of the Constabulary
so testified as well as the recorder Gonzalez, who said, moreover, (rec., 252) that said "cris" (which was presented by the defense at the hearing as Exhibit 4)
belonged to Governor Lerma; that he (the witness) knew it and recognized it very well because it was placed on the governor's bookcase at the time he took
possession of his office. The accused said in his testimony (rec., 219) that upon seeing him unbottoning his coat and taking out his revolver after he told the
governor (as has been mentioned already) to prepare because one of them will have to die, said governor raised up his right hand placing it on the bookcase
where the "cris" was, but that when he saw that the case of his (the accused) revolver was opened, he cried out "in ko po" (my mother) "guardia" (guard) and
then he (the accused) fired the first shot. Upon being asked whether in that morning, when he saw the "cris" on top of the governor's bookcase, said "cris" was
within the reach of the latter, Lieutenant Navarro, in turn, answered, "I believe that the court has been there and can tell by sitting in the chair whether it was
within his reach or not," an answer with which the witness tried to show that he had no interest in expressing his own
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opinion about the question propounded upon him. Moreover, upon being asked again * * * "But as you found the 'cris' in that morning, same was within the
governor's reach, if the governor were sitting in his chair," Navarro answered, "It seems so." And, finally, upon being asked "If Governor Lerma were in his chair
where he used to sit, could he reach the "cris" ? the recorder Gonzalez answered, "Sitting, he could not reach it, but standing, he could," adding, furthermore,
that he did not know Governor Lerma's object in having said "cris" in his office on top of his bookcase, but that he knew that he had it there at the time he took
possession of his office and that he never saw the governor use said weapon; and that, lastly, the governor had a revolver which he (the witness) had seen, but
he did not know where this weapon was on that date, or when the incident took place, and that he (governor) seldom used it, bringing it with him only when
making some inspection in some municipalities.
Now then, it being not proven, beyond all doubt that there is present in the commission of the crime in question the aggravating circumstance of known
premeditation, for concerning this the majority themselves concede to the accused the benefit of a doubt and they have refrained from making any holding about
it; it being not also proven beyond all doubt that the accused had made up his mind to kill Governor Lerma when he went into the office of the latter in the
morning in question; on the other hand, it being proven, without the shadow of a doubt, (for such is the result of the testimony not only of the accused but also of
the reporter Reyes, a witness for the prosecution) that before firing the first shot with his revolver followed immediately by the second shot, the accused warned
the governor to be prepared, to defend himself as much as he could because he (the accused) was going to kill him; and, finally, the governor having means
and opportunity to defend himself in any manner or to resist the attack (for on the bookcase by his side there was a "cris," which can not be considered as an
object for mere ostentation on that bookcase, be-
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cause, if it was so, it should have been placed in the panoply in said office), and having been able to take said weapon, even if he were stooping a little or
standing by his seat, and for which he had also enough time inasmuch as the accused unbottoned his coat, took out his revolver f rom his. belt and from the
case where it was before firing the first shot, it is evident that it cannot be affirmed that the accused employed -means, methods or forms in the execution of the
crime which had tended directly to insure its execution without risk to himself arising from the defense which the offended party could have made. On the
contrary, all of the acts executed by the accused (before firing the first two shots with his revolver at the governor while the latter was in front of him, taken
together with the strained relation between them mentioned in the majority decision, or their enmity, and with their conversation in the first as well as in the
second interview) are incompatible with the lawful existence of the circumstance of alevosa (treachery).
But even admitting that Governor Lerma was defenseless and that he did not suspect that he was going to be attacked by the accused in the manner that he
was attacked, nevertheless it cannot be said that the crime was committed with alevosa as a qualifying circumstance, because, beside the fact that said
circumstance is of a subjective character, or that it is exclusively related to the accused and not to the condition of the offended party, there having been, in the
first as well as in the second interview between the governor and the accused, an exchange of words which showed that there was an ill feeling between the
two such that would have given rise to a personal attack by anyone of them against the other, it is not impossible that the one who is attacked would have to def
end himself by some means. The supreme court of Spain has held so in its decision of January 19, 1907 (Vol. 78, Criminal Jurisprudence), in a case in which an
individual fired a shot gun at two other individuals who were defenseless and who had no means to suspect that they would have been attacked by the assailant
in the manner they were attacked, thereby killing them in-
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stantaneously. The court based its decision in that (1) alevosa being a circumstance of a subjective character, in order to consider its existence, it must be
shown whether or not the accused employed means, methods, or forms in the execution of the crime which tended directly and specially to insure its execution
without risk to himself arising from the defense which the offended party might make; and that (2) admitting that the deceased was defenseless and that they did
not suspect that they would have been attacked by the accused in the manner they were attacked, this fact is not sufficient to show that the act was committed
with alevosa which qualifies the crime as murder, inasmuch as the personal acts of the accused constituting the treacherous means employed are not
specified, as well as it appears from the verdict that the shots were preceded by words and gestures indicative of the initial stage of a quarrel and exclusory,
unless there appears facts to the contrary, of the impossibility that at any stage of the attack the offended party could have defended themselves, much more in
dealing with an attack which, although not foreseen, was committed by a man who, on appearing at the place of the incident to recriminate upon the deceased,
was carrying a shotgun with which he afterwards fired at them.
Moreover, in its double aspect as aggravating and qualifying circumstance in the crime against persons, alevosa requires for its juridical integration that, even if
same arises at the moments of the execution of the crime, the election of the means tending to insure the accomplishment of the act without risk to the assailant
arising from the possible defense of the offended party, be the product of the sound mind of the guilty person; for it is only when, says the Supreme Court of
Spain in a decision of July 6, 1910 (Vol. 85, supra), by an act exclusive of the aggressor, the offended party is deprived of all the natural means of defense, that
the special aggravating circumstance, aforementioned, exists.
The f oregoing doctrine was applied by the Supreme Court aforementioned, in the decision (supra,) of a case in which
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the accused, suddenly, unexpectedly and from behind, struck an individual with a club in the head from which he died, without risk to his person and knowledge
on the part of the victim, who had challenged the accused before the attack. The supreme court held that this fact (that the offended party had challenged the
accused before the attack) altered and destroyed the element of alevosa and showed, strictly interpreting the verdict, that from the provocation and challenge of
the one, the attack of the other followed without interruption, and that the external form of said attack only meant an accident peculiar to their reciprocal
impetuosity at the moment.
In the instant case it is not proven that, when he went to see the governor in that morning, the accused Baluyot carried with him the revolver expressly and
precisely to make use of said weapon against the former, in the same way that it is not proven that he then had deliberately and reflexively premeditated and
resolved to kill the governor. On the other hand, from the testimony of the accused himself, who was an officer of the National Guard, it appears that he was
accustomed to carrying with him said revolver whenever he used to leave the house to go from one place to another. Nor did the accused try to avoid all
personal risks arising from the defense which the governor could have made. But, on the contrary, with the warning he made to the latter to be prepared, to def
end himself as much as he could because he was going to kill him, he (the accused) ran the risk that the governor might have suddenly made use for his
defense of the "cris" which he had by his side although, as has been already .said, he could dispose of a short time. And it is not doubtful that on that occasion
the governor was not deprived, by an act exclusive of the accused, of all the natural means for a defense. It is true that between the governor and the accused
there was no quarrel, altercation, or dispute but there was an exchange of words of such meaning and sense as could have provoked, as has been already
said, the anger of said accused. And certainly it is not necessary that said words should have
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been spoken in a loud voice or in an angry tone in order that same could have produced said effect, for it is well known that words gently spoken without any
alteration can produce, according to the circumstances, same effect as if spoken in a loud voice and in an aggressive tone. It is undeniable that all of the
foregoing circumstances exclude the idea that the accused treacherously fired the first two shots at the governor, and (as in the case decided by the supreme
court of Spain in the decision aforementioned), the external form of the attack was only an accident peculiar to the reciprocal impetuosity of the governor and
the accused at the moment. If Governor Lerma was strongly frightened (as it is natural) when he saw the revolver in the hands of the accused and heared the
warning or the challenge of this, and had no sufficient will power to remain cool before the danger that was threatening him nor sufficient strength to defend
himself from the attack of which he was going to be the object (to repel, or to resist it, making use of the means of defense which he had in hand or of the "cris,"
which was on the top of the bookcase by his side, or of a chair or of any other furniture which was near him, whereby the accused, by means of the first two
shots, caused him two wounds, bef ore the same governor could take refuge in the closet toward which he suddenly fled, pursued by the accused) it cannot be
inferred therefrom that the latter acted treacherously in making said attack; for, as has already been said, alevosa (treachery) is a circumstance of a subjective
character and in order to determine its existence in a case, the condition of the person attacked and what this would have done or left to have done should not
be taken into consideration, but the acts of the accused himself.
There having been, then, no alevosa when the accused attacked the governor by firing the first two shots, we now pass on to the third.
This shot was fired by the accused when Governor Lerma, fleeing through the corridor after the second shot; took refuge in the closet which, as has been said,
was at the
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end of said corridor. Once in the closet, the governor shut the door and placed himself, as the majority decision says, in a position to obstruct the entrance of his
pursuer, who vainly attempted to open the door. In the same decision it is further said that the accused, judging the position of the governor's head from the
direction of the sound emitted when same began to call aloud for help, fired his revolver in the direction indicated, the bullet passing through the panel of the
door, struck the governor in the forward part of his head near and above the right temple. The wound was necessarily fatal and caused the governor's death two
or three hours after.
From the evidence it appears: (1) according to the reporter Reyes (rec., 39), that, referring to him what happened in connection with the third shot, the accused
told him that he (the accused) pursued the governor because he thought that the first two shots missed him, that the governor was able to reach the door of the
closet and to sit behind it and, once within, called aloud, and from the sound thus emitted, he (the accused) was able to judge where the governor was and he
then fired and observed a movement at the door, that he opened it and as he did so the body of the governor shot towards him as if in an attitude to embrace
him, and he ran away from the body and it fell; (2) according to Lieutenant Labayan (rec., 152) that in an interview had between them in the afternoon of the
same day of August 3d, the accused told him that the governor fled through the corridor and was able to enter in it and close the door of the closet, that then
there was a struggle between the two in order to open the door and as the governor was calling aloud for a guard, he (the accused) knew from the governor's
voice that the latter was sitting and, judging from said voice, he fired again, and after this shot the door was opened and the governor fell towards the window of
the corridor.
Perhaps, it has been inferred from these two testimonies that before discharging the third shot, the accused had judged the position of the governor's head, as
stated in the
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majority decision. But, in reality, what the accused meant by said testimonies was that he knew the governor's position behind the door. Whatever it may be, it is
evident that when the accused fired the third shot, his object was to inflict a wound upon and consequently kill the governor. It is also true, as same decision
says, that the victim in his effort to escape had been driven to take refuge in the closet, and with the door closed it was impossible for him to see what his
assailant was doing, or to make any defense whatever against the shot directed through the panel of the door. But, in spite of all these and of the fact that,
according to the majority-opinion, the presence of alevosa in firing the third shot seems to be too patent of controversy that it requires no discussion whatever,
in my judgment, dissenting from such a respectable opinion, the presence of said qualifying circumstance should not be taken into account in the acts aforesaid.
And the reason is very clear. The accused did not take advantage of the fact that the governor was behind the door of the closet and he was in front of it, or
outside of said door; nor did he select this situation in order to prevent said governor from defending himself, so that without risk to his person arising from said
defense, he might insure the execution of his criminal object. On the contrary, said situation was an obstacle against the realization of the object of the accused;
was a means employed by the governor, under the desperate and sorrowful condition in which he was found, for his defense against the attack of which he was
the object; was a difficulty encountered by the accused from continuing his attack upon the governor and making sure his aim at him with his revolver. The
accused, after all, did not avail himself of these means or situation (that the door of the closet being closed) in order to make his victim a better and more
accurate target, as is shown by the fact that only by judging the governor's position behind the door was he able to hit him with the third shot. And it is hereby
convenient to rectify what appears in the decision of the lower court, namely, that one of the admissions made
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by the accused to the reporter Reyes and Lieutenant Labayan (at the interview they had in the jail with him relative to the third shot) was that when the accused
knew the governor's position from the sound emitted when the latter called for help, he fired the third shot, placing the muzzle of his revolver against the door
and at the place where he thought the -governor's head was. This is absolutely inaccurate. Neither Lieutenant Labayan nor reporter Reyes has said this. And it
is not strange that (such an admission being found in the judgment of the trial court, which was reproduced by the Attorney-General in his brief, copying- the
whole of the respective paragraph of the judgment appealed from) the Attorney-General has invoked in his brief, as applicable in the instant case, the decision
of the Supreme Court of Spain of December 10, 1884, cited in I Viada's commentaries 260, in order to maintain that the qualifying' circumstance of alevosa was
present when the third shot was fired. As it appears in the decision of the Supreme Court of Spain aforementioned, the case decided therein was: that a fight
took place between the accused and the inmates of a house; that after the accused had been ejected from said house and its door closed by those within, said
accused fired his pistol, which he was carrying, through the crevice of the door; and that one of the persons inside the house was thereby killed. If in the present
case (as has been inaccurately asserted in, the judgment appealed from, referring to what has been testified by the reporter Reyes, an assertion accepted by
the Attorney-General in his brief) Baluyot had placed the muzzle of his revolver against the door behind which was Governor Lerma and at the place or spot
where he thought the governor's head was, or had, upon firing the third shot, previously placed said revolver against the wall, of the door (as is also inaccurately
mentioned in said judgment referring to Lieutenant Labayan), then the holding of the Supreme Court of Spain in its decision aforementioned would be in some
way applicable, although not closely; for in the case aforementioned the agent or aggressor fired his re-
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volver through the crevice of the door, i. e. he could easily aim at same of the persons behind the door, one of whom he wounded. But in the present case the
accused Baluyot fired the third shot at the spot where the head of the deceased must have been merely according to his judgment of the victim's position, or his
being seated, and of the sound emitted by him when he called out for help. As a consequence of said shot, he inflicted the mortal wound he had intended.
Therefore, the difference between this case and the other one is very clear. Moreover, it must be also taken into consideration that the third shot was fired by the
accused after the first two shots as a mere continuation of his attack upon the governor, and when he, being already excited and in the heat of anger, could not,
naturally, be in a position to stop to aim his revolver with the necessary accuracy at exactly the head of the deceasedmuch more less because, from the
testimony of the accused himself, the governor was calling out for Venegas, Aranjuez and a guard.
It is true, according to the majority decision, that the victim in his effort to escape had been driven to take refuge in the closet, and with the door closed it was
impossible f or him to see what his aggressor was doing, or to make any defense whatever against the shot directed through the panel of the doorthe case
being the same, according to the majority, as if the victim had been bound or blindfolded, or had been treacherously attacked from behind in a path obscured by
the darkness of the night. It is indisputable that Governor Lerma was completely defenseless while taking refuge in the closet even if the door could have very
well served to him, in any manner, as a means of defense (and he must have so understood when he pushed or held it from within to prevent the accused from
entering said closet.) But in order to determine whether the means employed by the accused when he fired the third shot were treacherous or not, the condition
and situation in which the victim was found must not be taken alone. Great consideration must also be had of the acts executed by the accused as constituting
his unlawful aggression, because the quali-
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fying circumstance of alevosa is subjective in character, as has been repeatedly said, or is specially connected with the aggressor. And it is evident that if
Governor Lerma could be compared to a person bound and in defenseless conditions aforementioned, for the reason that the door being closed he could not
see what his aggressor was doing, or make any defense whatever against the shot directed through the panel of the door, it was not due to any act of the
accused because the latter was not the one who closed the door, or prevented it to be opened. On the contrary, it was the accused who tried to open it by
pushing it persistently in order to continue his assault upon the unfortunate governor. And if Baluyot fired the third shot through the door, it is also indisputable
that he did not take advantage of the door being closed, nor did he choose to fire said shot while it was thus closed in order to insure himself against any
defense of resistance which could be made by the person attacked, or to insure the consummation of the criminal act he was executing, for the same reason
that from his own actions he preferred to have the door opened before firing the third shot at his victim.
However, supposing, but not admitting as true, that the third shot, which caused Governor Lerma's death, was fired by the accused under such circumstances
as would justify the holding that the procedure then employed by said accused was treacherous, it cannot also be considered that the commission of the crime
was attended by the qualifying circumstance of alevosa which raises it to the degree of murder. It is a fact recognized in the majority decision that the entire
assault upon Governor Lerma from the beginning must be considered continuous, i. e., there was no break of continuity in each of the three shots fired by the
accused at the governor. So that said three shots constituted, in reality, one single attack or one single act. Since it cannot be considered as duly proven,
beyond reasonable doubt or in any manner whatever (as it is not in the judgment of the undersigned, as has already been said), that the accused acted
treacherously when he fired the first two shots
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at the governor (which caused the two wounds in the region of the right supra-clavicle) or when he commenced to execute the criminal act, there is no legal
terminology whereby the qualifying circumstance of alevosa can be considered present after the assault has been commenced; because alevosa must
necessarily embrace the entire assault constituting the crime. Such has been the holding of the Supreme Court of Spain in its decision of September 9, 1901,
(Vol. 67., Jurisprudencia, Criminal}, in a case in which the accused fired two gun shots at his victim, who thereby received four wounds, and when said victim
was already lying on the ground the accused again delivered several blows with the butt of his gun on the victim's head, thereby inflicting upon the latter several
other wounds of which he died shortly afterwards. It appears from the verdict that the first two shots were not fired by the assailant from behind his victim in
order to insure in that manner the execution of the crime without any risk to himself arising from the defense which the deceased could have made, but that, in
delivering the several blows with the butt of his gun in the head of the deceased while lying on the ground, the assailant employed means, methods or forms
especially and directly tending to insure the victim's death without any risk to his person arising from any defense the deceased could have made; I. e., the
assailant did not employ treacherous means at the beginning of the assault but only towards its end when he killed the victim. In reversing the decision of the
Audiencia Provincial de Gerona qualifying the crime as murder and condemning the accused to death penalty, the Supreme Court aforementioned held the f
ollowing:
"That treachery necessarily embraces the entire assault constituting the crime, so that treachery cannot be considered present when it was not present at the
beginning of the unlawful assault, notwithstanding that said assault was consummated on account of the victim's inability to repel it; that, therefore, the Jury
having found out that there was no treachery when the accused fired the two shots
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at the victim, and that, when the latter fell on the ground as a consequence of said shots, said accused delivered several blows with the butt of his gun in his
head, treachery cannot be considered present, even if the act of delivering said blows were treacherous, as the victim was killed with the butt of the gun when
he was already lying helpless on the ground."
The case decided in the foregoing decision, as it appears, is identical to the instant case, and the fundamental reason adduced therein by the Supreme Court
aforementioned, consists 'in that, the assault being considered as indivisible and only one criminal act punishable by law, even if it was executed at different and
successive stages, it cannot be con sidered that in the execution of said act there are present separate and distinct circumstances in connection with each of
the facts embracing said act which constitute but one crime.
However, the majority decision maintains, by citing the decision of this court in the case of U. S. vs. Elicanal (35 Phil. Rep., 209), that even supposing that
treachery (alevosa) had not been presented at the beginning of the assault, it would be necessary to find this element present from the manner and
surrounding circumstances under which the crime was consummated. The foregoing decision of this court contains this syllabus:
"It is the doctrine of this court that where the person killed was in a helpless and defenseless condition at the time the fatal blow was given, the homicide was
committed with alevosa notwithstanding that in the attack, which was continuous, and which finally resulted in the death there was no alevosa."
The facts in the foregoing case were:
That while the sailboat Catalua under the command of her captain Juan Nomo, was on her trip along the coast of Iloilo, the chief mate of said sailboat named
Guillermo Guiloresa told Eduardo Elicanal, the accused, and one of the members of the crew, that he was going to kill the captain
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because he was very angry with him and asked him to assist him. But Elicanal paid no attention to this proposal because he thought that it was a joke; that the
following day while the crew were engaged in their daily occupation, the same chief mate (Guillermo), finding the captain in his cabin, assaulted him attempting
to seize and hold his hands and at the same time calling the crew to come forward and help him. The crew, with the exception of the accused, hastened to the
spot where Guillermo was engaged in a hand to hand fight with the captain. At the request of Guillermo the crew seized the captain and tied him with rope. After
he had been rendered helpless, Guillermo struck the deceased captain in the back of his neck with an iron bar, and then delivering the weapon to the accused,
ordered him to come forward and assist in disposing of his victim. The accused thereupon seized the bar and, while the captain was still 'struggling for his life,
struck him the fatal blow in the head, which caused his death.
After a thorough consideration of the qualifying circumstances that should be taken into account in the commission of the crime, among which is that of
alevosa, which the court took into consideration in qualifying the offense as murder and in sentencing the accused Elicanal to death penalty, in order to hold
that in the case then at bar the qualifying circumstance of alevosa was present, the writer of the majority opinion, Justice Moreland, said:
"This court has held repeatedly that, even though the beginning of an attack resulting in the death of the deceased is free from treachery of any sort,
nevertheless it will be found present if, at the time the fatal blow is struck, the deceased is helpless and unable to defend himself. While the writer of this opinion
hold the view that, where there is not treachery in the attack which results in the death of the deceased, there can be no treachery which will qualify the crime as
murder notwithstanding the fact that, at the time the fatal blow was struck, the deceased was unarmed and defenseless, but, the court having held so frequently
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the contrary, the writer accepts the doctrine so well established."
In acknowledging in the f oregoing decision that the doctrine established in the case, U. S. vs. Balagtas and Jaime (19 Phil. Rep., 174 invoked by counsel for
the defense to maintain that the qualifying circumstance of alevosa could not be taken into account in the commission of the crime inasmuch as it was not
present at the beginning of the assault upon the captain of the vessel) was quite different from, if not directly opposed to, that already stated as, therefore, the
uniform holding of this court in former cases, the writer of said decision, Justice Moreland, again said that, inasmuch as the majority of the court being of the
opinion that it was not the intention of the court in the case U. S. vs. Balagas .and Jaime to reverse the previous decision of this court and to set down a new
doctrine, he accepted that view particularly in the face of the almost unbroken line of decisions on the subject now to be referred to. Then in the following lines
Justice Moreland cited various cases decided by this court holding, as has been already stated, a uniform doctrine quite different from, if not opposed to, that
established in the Balagtas and Jaime case aforementioned. The first of said cases was that of U. S. vs. De Leon (1 Phil. Rep., 163) wherein "it appeared," says
same decision, "that the accused entered the house of the deceased, drew their bolos and compelled him to follow him. On arriving at a place called Bulutong,
the deceased was bound and in that condition murdered. It was held that the fact that the deceased was bound at the time he was killed although there was no
treachery at the beginning of the assault resulting in his death, the qualifying circumstance was present. The court said:
"From the evidence there appears the qualifying circumstance of treachery. To show this it is only necessary to mention the fact that the deceased was bound.
" 'The head note to that case says:
" 'The fact that the deceased was bound while killed con-
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stitute the qualificative circumstance of alevosa and raises the crime to the degree of murder, * * * ' "
The various cases, fifteen in number, mentioned by Justice Moreland in the aforesaid decision, beside that of U. S. vs. De Leon, aforementioned, are cited in
same decision (35 Phil. Rep., 218), followed by, "For these reasons we are of the opinion that the crime was committed with treachery and that it was properly
denominated murder instead of homicide."
Now then, as it appeared in the De Leon case, the accused began the attack by entering the house of the deceased, drawing their bolos and compelling him to
follow them, and, on arriving at a certain place, the deceased was bound and in that condition murdered. Upon an examination of the fifteen cases cited in the
same decision, it appears that the facts, leading to the prosecution of the respective accused and the classification of the crime as murder because of the
presence of the qualifying circumstance of alevosa, were identical to those in the De Leon case, or, what amounts to the same thing, were, with some
alterations, that after the offended parties had been kidnapped from their respective homes or sequestered and carried to another place and there bound by
their aggressors, they were put to death while absolutely defenseless. The facts in one of the cases cited in the aforementioned decision, that of U. S. vs. Nalua
and Cadayum (23 Phil. Rep., 1), were: two persons suddenly and unexpectedly leaped upon a third, and while one of them holds the victim's hands the other
stabs him to death.
What was then mainly taken into account by this court in holding, in the case U. S. vs. Elicanal, that in the commission of the crime there is present the
qualifying circumstance of alevosa, was that the captain of the sailboat Catalua was tied with rope when the accused, by order of the chief mate, took the iron
bar and with it struck a blow in the head of the deceased resulting in his death.
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The special circumstance that, when the deceased captain was killed by Elicanal, he was tied with rope and was "consequently helpless and defenseless is
what, comparing said case with that of De Leon and the other cases cited therein, was taken into consideration by this Court in the aforementioned decision in
holding that treachery was present When Elicanal killed the captain even though there was no treachery at the beginning of the struggle. Such was duly and
thoroughly shown by the arguments in the same decision holding clearly that where the person killed is bound hand and foot when the aggressor killed him, the
crime was committed with alevosa, even though the acts of the aggressor prior to the killing were not treacherous, or that in such a case any other
consideration related to the former acts of the offender must be excluded and the act of said offender in killing the deceased must be considered treacherous. If
in holding what it did in the Elicanal case the purpose of this court had been otherwise, useless would have been all that has been said by Justice Moreland in
the decision of said case, citing as the ground for his concurrence with the majority (notwithstanding his holding a different opinion and the doctrine established
in the Balagtas and Jaime case) the cases already mentioned (the De Leon case and the other 15 cases cited in same decision) and finally accepting the view
of the majority in the sense that it was not the intention of the court in the Balagtas and Jaime case to reverse the previous decisions of this court and to set
down a new doctrine in view of the uniform holding of this court upon the subject in question; i. e., those holdings in the aforementioned case of De Leon and
the other fifteen.
The case at bar, as it clearly appears, has no analogy or similarity whatever with the cases cited above nor with the Elicanal case. In all these cases the acts
complained of were that the victims had been tied by their respective murderers before they were killed. In the Elicanal case there was at the beginning of the
attack a hand to hand
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fight in the course of which the chief mate Guillermo with an iron bar dealt a blow in the back of the neck of the deceased captain while the latter was tied with
rope, before another blow was delivered by the accused Elicanal at the request of said Guillermo. Treachery was, therefore, present when Guillermo dealt the
first blow and before Elicanal delivered the fatal one on captain Nomo, deceased. In the De Leon case and the other fifteen cases cited in the decision against
Elicanal, the purpose, the principal object, of the offenders being to put to death the victims by them sequestered or kidnapped from their homes, their acts of
tying said victims were simply preliminaries or preparatory to the principal act committed by them at the time the offended parties were already bound and
rendered completely defenseless. Treachery, therefore, cannot be present in the said preliminary acts, it being present only when the accused executed their
principal object, or their intended purpose at the time they sequestered the offended parties. On the other hand, the case at bar (which is rather unnecessary to
repeat) was that the accused Baluyot began attacking Governor Lerma by firing two pistol shots while said governor was in f ront of him thereby causing him
two wounds; and that the deceased having taken refuge into the closet next to the corridor adjoining his office, the accused continued his attempt by firing
another pistol shot which caused the death of the victim.
It is, therefore, evident that the case at bar has no application to the doctrine established in the Elicanal case and in those cases cited in the body of same case
by the writer, Justice Moreland, and invoked in the opinion of the majority in order to hold that, even supposing that at the beginning of the assault upon
Governor Lerma treachery was not present, it would be necessary to consider its presence in view of the form by which the crime was committed. On the
contrary, the present case has an exact application to the doctrine established by the Supreme Court of Spain in its decision of September 9, 1901, already
470
470
mentioned above, and expressive of the fact that "treachery must necessarily be present thruout the assault constituting, the crime," because the present case
is identical to that decided by said Supreme Court in the aforementioned decision where the foregoing doctrine was established. The case ,at bar has also an
exact application to the doctrine established in the Balagtas and Jaime case (supra), to wit:
"In order that alevosa may be considered as a qualifying circumstance to raise the classification of the crime, or as an aggravating circumstance to augment the
penalty, it must be shown that the treacherous acts were present and preceded the commencement of the attack which cause the injury complained of. After the
commencement of such an attack, and before its termination, an accused may have employed means or methods which are of a treacherous character, and yet
such means and methods would not constitute the circumstance of alevosa. One continuous attack cannot be broken up into two or more parts and made to
constitute separate, distinct, and independent attacks so that treachery may be injected therein and considered as a qualifying or aggravating circumstance."
(19 Phil. Rep., 164.)
The foregoing doctrine must be considered subsisting, and it is, in my own judgment, subsisting notwithstanding what has been said by this court in the cases
already cited; to wit, U. S. vs. De Leon, U. S. vs. Elicanal, and the fifteen cases mentioned in the last one.
For the foregoing reasons and with due respect to the opinion of the majority of this court, I hereby dissent from same and am of the opinion that the crime
committed by the accused, according to the evidence adduced at the hearing and their merits, is not murder but homicide, defined and punished under article
404 of the Penal Code; and that the fact that it was committed at the place where the deceased Conrado Lerma, Governor of Bataan, was exercising the proper
functions of his office as such governor, a generic circumstance modifying the criminal responsibility incurred
471
471
Philpotts vs. Philippine Manufacturing Co. and Berry.
by the accused in the sense of aggravating same without the presence of any extenuating circumstance to compensate it, the accused must be sentenced to
suffer the medium of the maximum degree of the corresponding penalty, i. e., 18 years 2 months and 21 days of reclusin temporal with the accessories of
article 59 of the same Code; but that if it be considered, as it was understood by the majority in their decision, that same criminal act executed by the accused in
fact resulted in the perpetration of two crimes, one of them being the assault upon persons in authority defined in article 249 No. 2 of said Code, the accused
must therefore be sentenced to suffer the penalty corresponding to the more serious crime, i. e., that of homicide in its maximum degree, as provided for in
article 89, or 20 years of reclusin temporal and the same accessories of article 59.
Judgment modified.
___________ United States vs. Baluyot., 40 Phil. 385, No. 14476 November 6, 1919
People vs. Chan Fook
pealed to this court, and attempts to show, among other things, that said lots (Nos. 122 and 123) should not be subjected to the said easement in favor of lot No.
124, and that the evidence adduced during the trial was sufficient to show that he was the owner in fee simple of said lots.
After hearing the evidence adduced during the trial of the cause, the lower court made an ocular inspection of the existence of the easement in question, and
became thoroughly convinced, not only from the evidence adduced during the trial of the cause, but from said ocular inspection, that there existed the easement
in question in favor of said lot No. 124.
With reference to the sufficiency of the evidence to show that Amado L. Santos was the owner in fee simple of said lots (Nos. 122 and 123) and entitled to have
the same registered in his name, it may be said (a) that the evidence adduced during the trial of the cause is not sufficient to sustain his contention, and (b) that
in his argument in support of that assignment of error, he cites no proof nor any part of the record in support of his contention.
After a careful examination of the entire record we are forced to the conclusion that the judgment of the lower court should be, and is hereby, affirmed, with
costs. So ordered.
Araullo, Street, and Avancea, JJ., concur.
Judgment affirmed.
[No. 16968.October 6, 1921]
The People of the Philippine Islands, plaintiff and appellee, vs. Chan Fook, defendant and appellant.
Search of Foreigners in Customhouse; Resistance and Disobedience to Public Authority.Section 1338 of the Administrative Code providing that all persons
coming into the Philippine Islands from foreign countries shall be liable to detention and search by the customs authorities, does not authorize the said
authorities to search a foreigner who, having been permitted by them to land at the port of his destination, has entered and
231
VOL. 42, OCTOBER 6, 1921
231
begun to reside in these Islands. A customs officer who attempts to search said foreigner exceeds his power, and the latter may resist such a search and
even make use of the means reasonably necessary to prevent it. Such a resistance does not constitute the crime of resistance and disobedience to the public
authority denned and punished by article 252 of the Penal Code, because as the proposed search is illegal, the officer who attempts to perform it does not act
as an agent of the authority.
APPEAL from a judgment of the Court of First Instance of Manila.Harvey, J.
Hartford Beaumont for appellant.
No appearance for appellee.
Villamor,J.:
The appellant Chan Fook was prosecuted for the crime of resistance and disobedience to the public authority, and sentenced by the Court of First Instance of
Manila to two months and one day of arresto mayor and to pay a fine of 1,301 pesetas and the costs of the action, with subsidiary imprisonment in case of
insolvency.
From the record it appears that the accused, a Chinese subject, was a passenger of the United States Military Transport South Bend, which arrived in Manila on
April 6, 1920. Having been allowed by the immigration authorities to land, he left the boat on the same day, April 6. At about 3 or 4 o'clock in the afternoon of the
following day, he went to pier No. 1 to get his baggage. After the search of the baggage in which postcards of an indecent character were found, a customs
agent, Eugenio M. Cruz, attempted to search the body of the accused, to which the latter apparently objected. A dispute took place between the two, which
terminated in the secret agent seizing the Chinaman by the arm with intent to search his body, after showing him his police badge. The accused resisted and
struck the secret agent on the stomach. The latter in turn struck him on the neck. Here the customs inspector, Anastacio Jacinto, intervened, and explained to
the accused
232
232
that Cruz was a customs secret service agent and had the right to search him in order to find whether he had on his person any contraband. Then the appellant
made no further resistance and allowed himself to be searched.
Under such circumstances, has the accused committed the crime of resistance and disobedience to the public authority as alleged in the information? To decide
this question, it is first necessary to determine whether the agent, Cruz, was authorized to search the person of the accused.
The prosecution alleges that under section 1338 of the Administrative Code all persons coming into the Philippine Islands from Foreign countries shall be liable
to detention and search by the customs authorities under such regulations as may be prescribed relative thereto. The defense, however, contends that once the
accused has arrived at the point of his destination by being allowed to leave the boat and to land he was beyond the jurisdiction of the customs authorities, and,
therefore, not liable to search without judicial warrant. Section 1338 of the Administrative Code provides:
"Sec. 1338.Search of persons arriving from foreign countries.All persons coming into the Philippine Islands from foreign countries shall be liable to
detention and search by the customs authorities under such regulations as may be prescribed relative thereto.
"Female inspectors may be employed for the examination and search of persons of their own sex."
Having in mind the aim of the law in authorizing the search of persons coming from foreign countries, which is to avoid the clandestine introduction into the
Philippine Islands of goods subject to the payment of customs duties, or the importation of articles prohibited by law, or the entrance of persons who have no
right to reside in these Islands, we are of the opinion that after the customs authorities have permitted the accused to land in Manila, the terminus of his voyage,
he ceased to be a passenger within the meaning of said section 1338 of the Administrative Code.
233
233
The fact that the accused returned to pier No. 1 to get the baggage that he had left there the day before does not subject him to the operation of said section.
He could have gone back there several weeks or months after his arrival, and in such case, if the contention of the prosecution is sustained, all foreigners
arriving in the Philippines would be in the highly anomalous situation of being liable to detention and search for an indefinite time, which is a violation of the right
to be secured against ureasonable searches guaranteed by section 3 of the Act of Congress of August 29, 1916, known as Jones Law, which provides:
"That the right to be secured against unreasonable searches and seizures shall not be violated."
It is urged that the object of searching the person of the accused was to find whether he had with him any contraband. It was too late to look for any contraband.
He had already been searched when he left the boat. The accused had reached his destination, spending the night in the house where he had taken lodging. It
is not, therefore, reasonable to believe that when he returned to pier No. 1 the next day, he had about his body any contraband. Thus the search made by the
agent Cruz appears to be unreasonable.
Commenting on the meaning and scope of resistance and disobedience, as elements of the crimes against public authority and its agents, Groizard, among
other things, says: "A person in authority, his agent or a public officer who exceeds his power can not be said to be in the exercise of the functions of his office.
The law that defines and establishes his powers does not protect him for anything that has not been provided for.
"The scope of the respective powers of public officers and their agents is fixed. If they go beyond it and they violate any recognized rights of the citizens, then
the latter may resist the invasion, specially when it is clear and manifest. The resistance must be coextensive with the excess, and should not be greater than
what is necessary to repel the aggression.
234
234
"The invasion of the prerogatives or rights of another and the excess in the functions of an office, are the sources that make for legitimate resistance, especially,
in so far as it is necessary for the defense of the persons or their rights in the manner provided for in article 8 of the Penal Code." (3 Groizard, pp. 456, et seq.)
In the case at bar the action of the accused in laying his hands on the agent Cruz is, in our opinion, an adequate defense to repel the aggression of the latter,
who had seized him by the arm for the purpose of searching him. In accordance with the repeated decisions of the supreme court of Spain, the gravity of a
disobedience to an order of a person in public authority is measured and graded by the circumstances surrounding the act, the motives prompting it, and the
real importance of the transgression, rather than by the source of the order disobeyed. And, taking into consideration the circumstances of the present case,
wherein the agent Cruz had exceeded his functions, and wherein the accused acted in defense of the most highly esteemed of individual rightsthe
constitutional right to be secured against unreasonable searcheswe are of the opinion that there is no ground for finding the accused guilty of the crime
defined in article 252 of the Penal Code.
The supreme court of Spain, in a decision rendered December 26, 1876, held that the act of obstinately disregarding an order of an agent of the authority does
not constitute the crime of grave resistance and disobedience to an agent of the public authority where it appears that upon being directed for the third time, the
accused obeyed, though uttering unpleasant words, for although the accused did not leave the premises on the first and second requests, he, however, obeyed
on the third, and did not render it necessary for the public officer to make use of the means authorized by law to make himself respected. That the accused had
no intention to resist and disobey the agents of the authority, in the legal sense of the word, is shown by the fact that by the mere explanation of the customs
235
235
inspector, Anastasio Jacinto, he finally allowed himself to be searched. Jacinto's words were sufficient to make the Chinaman submit himself peacefully to the
requirement of the agent Cruz.
That foreigners in the Philippines are entitled to the benefits of the individual rights secured by the Philippine Bill is undeniable. In the case of Kepner vs. U. S.
(195 U. S., 100), the Supreme Court said:
"When Congress came to pass the Act of July 1, 1902, it enacted, almost in the language of the President's instructions, the Bill of Rights of our Constitution. In
view of the expressed declarations of the President, followed by the action of Congress, both adopting, with little alteration, the provisions of the Bill of Rights,
there would seem to be no room for argument that in this form it was intended to carry to the Philippine Islands those principles of our government which the
President declared to be established as rules of law for the maintenance of individual freedom, at the same time expressing regret that the inhabitants of the
Islands had not therefore enjoyed their benefit."
And according to the principles underlying the Constitution, as extended to the Philippine Islands by the President's instructions to the Commission and by the
Philippine Bill, foreigners are entitled to the protection of their life, liberty, and property. In the case of Yick Wo vs. Hopkins (118 U. S., 356, 369), Justice
Matthews' says:
"The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says: 'Nor shall any State deprive any person of life, liberty, or
property without due process-of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their
application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality; and the equal protection of the laws
is a pledge of the protection of equal laws." People vs. Chan Fook, 42 Phil., 230, No. 16968 October 6, 1921

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United States vs.

[No. 1948. May 5, 1905.]

APPEAL from a judgment of the Court of First Instance of Cavite.

The facts are stated in the opinion of the court.

Jos Santiago, for appellant.

Solicitor-General Araneta, for appellee.

PHILIPPINE REPORTS ANNOTATED

United States vs. Dirain

VOL. 4, MAY 5, 1905

United States vs. Candelaria

Arellano, C. J., Torres, Mapa, Johnson, and Carson, JJ., concur.

[No. 11847. February 1, 1918.]

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

APPEAL from a judgment of the Court of First Instance of Iloilo. Mariano, J.

The facts are stated in the opinion of the court.

Gregorio Araneta for appellants.

Acting Attorney-General Paredes for appellee.

VOL. 37, FEBRUARY 1, 1918.

United States vs. Tabiana and Canillas.

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

VOL. 37, FEBRUARY 1, 1918.

United States vs. Tabiana and Canillas.

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

VOL. 37, FEBRUARY 1, 1918.

United States vs. Tabiana and Canillas.

Arellano, C. J., Johnson, Carson, and Fisher, JJ., concur.

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

ARAULLO, J., dissenting:

VOL. 37, FEBRUARY 1, 1918.

United States vs. Tabiana and Canillas.

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

Perhaps the matter would have ended here, if the three

VOL. 37, FEBRUARY 1, 1918.

United States vs. Tabiana and Canillas.

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

VOL. 37, FEBRUARY 1, 1918.

United States vs. Tabiana and Canillas.

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

VOL. 37, FEBRUARY 1, 1918.

United States vs. Tabiana and Canillas.

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

VOL. 37, FEBRUARY 1, 1918.

United States vs. Tabiana and Canillas.

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

Therefore said policemen and the witness Vazquez contra-

VOL. 37, FEBRUARY 1, 1918.

United States vs. Tabiana and Canillas.

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

VOL. 37, FEBRUARY 1, 1918.

United States vs. Tabiana and Canillas.

PHILIPPINE REPORTS ANNOTATED

United States vs. Tabiana and Canillas.

VOL. 37, FEBRUARY 1, 1918.