Вы находитесь на странице: 1из 56

9/27/2018 G.R. No. 7929 November 8, 1912 - UNITED STATES v.

ATES v. GENOVEVA APEGO<br /><br />023 Phil 391 : NOVEMBER 1912 - PHILIPPINE…

ChanRobles™ Virtual Law Library™ | chanrobles.com™

Like 0 Tweet Share


Search

Philippine Supreme Court Jurisprudence > Year 1912 > November 1912 Decisions > G.R. No. 7929 November 8,
1912 - UNITED STATES v. GENOVEVA APEGO

023 Phil 391:

Custom Search
Search

ChanRobles On-Line Bar Review

FIRST DIVISION

[G.R. No. 7929. November 8, 1912. ]

THE UNITED STATES, Plaintiff-Appellee, v. GENOVEVA APEGO, Defendant-Appellant.

Tirso de Irureta Goyena for Appellant.

Attorney-General Villamor for Appellee.

SYLLABUS

1. HOMICIDE; ATTEMPTED RAPE; DEFENSE BY A WOMAN AWAKENED FROM SLEEP AND BELIEVING
HERSELF ATTACKED. — When a sleeping woman is awakened at night by some one touching her or
grasping her arm, and she, believing that some person is attempting to abuse her asks who the intruder
is and receives no reply, attacks the said person with a pocketknife, and the nature of the wound shoes
that she was either standing up or sitting up at the time, it is concluded that, notwithstanding the
woman’s belief in the supposed attempt, there was not sufficient provocation to justify her in using a
deadly weapon; although she actually believed it to be the beginning of an attempt against her, she was
not warranted in making such a deadly assault, as the injured person did not insist or repeat any act
which could be considered as an attempt against her honor.

2. ID.; ID.; PENALTY. — Under the above circumstances, it is further concluded that she is not entitled to
complete exemption from responsibility, as there does not enter into the act any of the requisites
contained in subdivision 4 of article 8 of the Penal Code; but as she is shown to be an ignorant woman,
devoid of education, she should be allowed the benefit of article 11 of the Code, as amended by Act No.
DebtKollect Company, Inc. 2142, without any aggravating circumstance, and the penalty, two degrees lower as prescribed by article
86, should be imposed in the minimum degree.

Per TRENT, J., dissenting:chanrob1es virtual 1aw library

1. HOMICIDE; ATTEMPTED RAPE; DEFENSE BY WOMAN AWAKENED FROM SLEEP AND BELIEVING
HERSELF ATTACKED. — The defendant, a single woman, twenty-five years of age, lived with her married
sister. The spouses returned to their house one night where the defendant was sleeping, and failing to
awaken her they ascended the stairs and entered the house. The husband, in groping around in the dark,
stumbled over the sleeping woman and touched her left arm. The woman, under the impression that she
was being assaulted with intent to commit rape, stabbed her brother-in-law with subsequent fatal results.
Immediately after delivering the blow, her sister lit a lamp and the defendant then for the first time
became aware of the identity of her supposed assailant. Held: The mistake of the defendant was
excusable under the circumstances.

2. ID.; ID.; ID.; PENALTY. — Where the mistake of fact is excusable, punishment, if any is due, must be
predicated upon the operative facts constituting the mistake of the defendant.

3. ID.; ID.; ID., ATTEMPTED RAPE; SELF-DEFENSE. — This court has already held that a would-be
ravisher takes his life in his own hands in attempting to commit the crime of rape, and that the woman
ChanRobles Intellectual Property attacked is entitled to an absolute acquittal for any defense she may make: this in a case where the
woman was physically the superior of her assailant and a way of retreat was open to her.
Division
http://www.chanrobles.com/cralaw/1912novemberdecisions.php?id=200 1/5
9/27/2018 G.R. No. 7929 November 8, 1912 - UNITED STATES v. GENOVEVA APEGO<br /><br />023 Phil 391 : NOVEMBER 1912 - PHILIPPINE…
4. ID.; ID.; I.; SELF-DEFENSE; UNITED STATES v. AH CHONG (15 Phil. Rep., 488), this court held that
the murder of the deceased by his male friend, committed while laboring under the misapprehension that
the deceased was a robber attempting to enter the house at night, was excusable and acquitted the
defendant, even though the evidence showed that the defendant attacked the deceased with intent to
kill. In the case at bar it is held that a woman in practically the same situation, but believing that the
attack is made with intent to rape her, is not justified in going so far in the exercise of her right of self-
defense as to kill her assailant, this although there is a strong presumption from the evidence that the
blow which she struck at her assailant was fatal by the merest chance.

DECISION

TORRES, J. :

This case comes to us on appeal from a judgment of February 15, 1912, by which the Honorable Mariano
Cui, judge, sentenced the appellant to the penalty of twelve years and one day of reclusion temporal, to
the accessories, to pay an indemnity of P1,000 to the heirs of the deceased, and the costs.

At about 8 o’clock in the evening of December 24, 1911, the spouses, Pio Bautista and Maria Apego,
coming from the municipality of Nasugbu, returned to their house, situated in the barrio of Sampaga,
pueblo of Balayan, Batangas, and before entering the same called to Genoveva Apego, the woman’s
sister, who they knew was therein, and, as they received no reply, went up into the house; the husband
led the way and opened the door; he was followed by his wife who, once inside, lit a match and then a
small kerosene lamp there was in the house. In the meantime the husband approached the place where
Genoveva was, who, startled, immediately awoke, seized a pocketknife used in spinning hemp, which
was in a box at her side, and with it attacked and struck Bautista, who was near her, a blow in the
breast; thereupon her sister Maria, who was not aware of the aggression, asked Genoveva why empty tin
cans and other articles were scattered about the azotea of the house, to which Genoveva replied by
saying: "What! have you arrived already?" and at once got up in front of the said spouses; at this
moment Maria advised her to cogitate and reflect, but Genoveva immediately ran out of the house,
asking for help; it was then that the wife noticed that her husband was seriously wounded, and when he
was afterwards examined by a physician it was ascertained that he bore a downward, penetrating wound,
in the shape of a T, in the intercostal space between the second and third ribs of the left side, that it
reached one of the lungs and the heart, was necessarily fatal, and was inflicted with a sharp-pointed
cutting instrument. A few moments after its infliction the injured man died.
November-1912 Jurisprudence
By reason of the foregoing, an information was filed in the Court of First Instance of Batangas, on
January 8, 1912, by the provincial fiscal, charging Genoveva Apego with the crime of murder, and upon
the institution of this case the aforementioned judgment was rendered.
G.R. No. 7063 November 4, 1912 - TOMAS v.
GODUCO, ET AL We accept the classification of homicide given by the trial judge to the facts involving the violent death of
Pio Bautista, since, in the commission of the crime, it does not appear that there was present any of the
023 Phil 342 qualifying circumstances that determine a more serious crime and penalty.
G.R. No. 6169 November 5, 1912 - FLORENTINO
ADRIANO v. HIPOLITO DE JESUS, ET AL. It is unquestionable and beyond all doubt that Genoveva Apego, an unmarried woman of about 25 years
of age, inflicted upon the deceased with a pocketknife a serious wound of a necessarily mortal nature, for
023 Phil 350 he died shortly afterwards. This wound penetrated the left nipple, extended between the second and
third ribs of the same side from an upper toward and an outward toward an inner direction and reached
G.R. No. 7006 November 5, 1912 - UNITED STATES the heart and one of the lungs.
v. PASCUAL MORANDARTE
The record does not show whether the deceased was able to make any ante-mortem statement, nor does
023 Phil 358 it appear to have been ascertained what was the motive of the fatal aggression of which the said Pio
Bautista was the victim.
G.R. No. 7050 November 5, 1912 - NACARIA
CASTILLO, ET AL. v. URBANO CASTILLO, ET AL The following conclusions of fact are derived from a careful study of this case: upon the arrival of Maria
Apego and her husband, Pio Bautista, at the stairs of their house, and as Genoveva Apego did not reply
023 Phil 364
to the call made to her from the outside by her sister Maria, the said spouses went to the upper floor of
G.R. No. 7321 November 5, 1912 - UNITED STATES the house; Bautista led the way and, in order to enter, opened the outside door, a sliding door, and as
v. PATRICIO CAMPO there was no light inside stumbled against Genoveva Apego, who was sleeping near the said door, and
touched her left arm; thereupon, Genoveva awoke and believing, as she testified, that somebody was
023 Phil 368 trying to abuse her, seized the pocketknife aforementioned, asking at the same time who was beside her,
and as she did not receive a reply immediately, she got up and struck the person before her a blow with
G.R. No. 7539 November 5, 1912 - UNITED STATES the said knife; in the meanwhile Maria Apego had separated from her husband to light a match and then
v. CIRIACO PUNSALAN a kerosene lamp there was in the house and was not aware of the assault made upon her husband by her
sister, and only when the light had been lit did she see her sister Genoveva in front of Bautista, who had
023 Phil 375 already been wounded and was in an attitude indicating that he was about to fall to the floor; thereupon
Genoveva went down out of the house, calling for help, and ran to the house of an aunt of hers where
G.R. No. 7892 November 5, 1912 - UNITED STATES
she was arrested by the policeman, Manuel Peinado, to whom she then and there delivered the
v. SO FO
pocketknife with which she had assaulted her brother-in-law.
023 Phil 379
In view of the shape and direction of the wound received by the deceased and the part of the body where
G.R. No. 7159 November 8, 1912 - UNITED STATES it was inflicted, according to the detailed report of the medical examination, it is unquestionable that the
v. MARCELINO RIVERA, ET AL. wound was inflicted by the defendant after she had arisen from the place where she had been sleeping,
or, at least, when she had raised up in a sitting posture or was seated on the floor, at the time that the
023 Phil 383 deceased perhaps stooped over, in stumbling against her, touched her left arm; but in no manner may it
be presumed that she assaulted her brother-in-law, Bautista, while she was still lying on the floor of the
G.R. No. 7929 November 8, 1912 - UNITED STATES house; such a presumption is precluded by a consideration of the direction the weapon took in
v. GENOVEVA APEGO penetrating the deceased breast.
023 Phil 391
Maria Apego testified that, during the two years her sister Genoveva lived in their house, the latter had
G.R. No. 8179 November 8, 1912 - THEODORE E.
conducted herself correctly, that they had always gotten along well and harmoniously together and had
ATKINSON v. M. L. STEWART, ET AL. never had the least misunderstanding between them. The record does not show whether there had been
any trouble or there existed any resentment between the defendant and the deceased who, before he
023 Phil 405 died and during the few moments he lived after he was wounded, make no statement whatever relative
to this point or to the conduct observed by the defendant with respect to the assault of which he was the
G.R. No. 7424 November 12, 1912 - UNITED victim, and, therefore, the defendant’s testimony must be accepted, to wit, that she struck a blow with
STATES v. POW SING, ET AL. the pocketknife at the person beside her, and who afterwards turned out to be her brother-in-law, Pio
Bautista, without knowing who he was and in the belief that, since he touched her left arm, he was about
023 Phil 421 to commit an attempt against her honor.
G.R. No. 7428 November 12, 1912 - UNITED Under this hypothesis, it can not be denied that, upon the defendant’s awakening, startled at feeling
STATES v. LIM SING, ET AL
somebody grasp her left arm and believing that an attempt was being made against her honor, as she
023 Phil 424 received no reply whatever to her question as to who was beside her in the darkness of the house, she
understood that there was a positive unlawful aggression from which she had to defend herself with the
G.R. No. 7567 November 12, 1912 - UNITED said pocketknife, and it is also undeniable that there was no previous provocation on her part; but it is
STATES v. SEGUNDO BARIAS unquestionable that, in making use of this deadly weapon, even in the defense of her person and rights,
by decidedly wounding him who had touched her or caught her by the arm, the defendant exceeded her
023 Phil 434 right of defense, since there was no real need of wounding with the said weapon him who had merely
caught her arm, and perhaps did so to awake her, as she was asleep and had not replied to her sister’s
G.R. No. 7768 November 14, 1912 - MANUEL calls; and as the party who she believed was making an attempt against her honor, because he had
SARITA, ET AL. v. ANDRES CANDIA caught her by the arm, performed no other act of aggression such as might indicated a decided purpose

http://www.chanrobles.com/cralaw/1912novemberdecisions.php?id=200 2/5
9/27/2018 G.R. No. 7929 November 8, 1912 - UNITED STATES v. GENOVEVA APEGO<br /><br />023 Phil 391 : NOVEMBER 1912 - PHILIPPINE…
to commit an attempt against her honor than merely to catch her by the arm, and although the
023 Phil 443 defendant believed that it was the commencement of such an attempt and that she had to defend herself
therefrom, it is true that, once awake and provided with an effective weapon for her defense, there was
G.R. No. 4656 November 18, 1912 - RICARDO no just nor reasonable cause for striking a blow therewith in the center of the body, where the principal
PARDELL Y CRUZ, ET AL v. GASPAR DE BARTOLOME Y vital organs are seated, of the man who had not performed any act which might be considered as an
ESCRIBANO, ET AL
actual attempt against her honor.
023 Phil 450
From the foregoing consideration it is concluded that in the commission of the crime there was present
G.R. No. 7735 November 18, 1912 - UNITED the circumstance of incomplete exemption from responsibility, as all the three requisites specified in
STATES v. LUISA POTESTAS subarticle 4 of article 8 of the Penal Code are not applicable; wherefore the criminal act is not altogether
excusable, on account of the lack of the second of the said requisites, although a majority of them were
023 Phil 466 present, that is, the first and the third requisites; and therefore, in accordance with the provisions of
article 86 of the code, a penalty lower by one or two degrees than that prescribed by article 404 of the
G.R. No. 7529 November 19, 1912 - UNITED code, in the discretion of the court, must be imposed upon the defendant.
STATES v. VALERIANO MOLINA
In view of the fact that the accused is an ignorant woman, wholly uneducated, and that it was not shown
023 Phil 471 that, at the time when she was assaulted the deceased, she knew that he was her brother-in-law,
account must be taken of the circumstance prescribed by article 11 of the code, in connection with Act
G.R. No. 8098 November 19, 1912 - UNITED
STATES v. FULGENCIO GERNALE No. 2142, as no aggravating circumstance whatever was present to counteract the effects of the said
extenuating circumstance; therefore, the penalty applicable to the defendant is the one lower by two
023 Phil 474 degrees and in the minimum period.

G.R. No. 8138 November 19, 1912 - UNITED For the foregoing reasons it is our opinion that, with a reversal of the judgment appealed from, the
STATES v. JUAN MORADA defendant, Genoveva Apego, should be, as she is hereby, sentenced to the penalty of two years of prision
correccional, to the accessories of article 61, to pay an indemnity of five hundred pesos to the heirs of
023 Phil 477 the deceased, and, in case of insolvency, to subsidiary imprisonment which shall not exceed one-third of
the principal penalty, and to the payment of the costs of both instances. In computing the time of the
G.R. No. 6769 November 20, 1912 - SANTIAGO sentence, credit shall be allowed for one-half of the time of imprisonment suffered by the defendant while
VANO UY TAT TONG v. INSULAR COLLECTOR OF awaiting trial. So ordered.
CUSTOMS

023 Phil 480 Arellano, C.J., Mapa and Johnson, JJ., concur.

G.R. No. 7705 November 21, 1912 - ELIAS ORO v. Separate Opinions
LEOCADIO PAJARILLO

023 Phil 484 CARSON, J., dissenting: chanrob1es virtual 1aw library

G.R. No. 7819 November 21, 1912 - UNITED I dissent. I am of opinion that there was no criminal intent on the part of the accused, and that she did
STATES v. PO CHENGCO what she did in the reasonable belief that she was acting in defense of her virtue. (U. S. v. Ah Chong, 15
Phil. Rep., 488.)
023 Phil 487
TRENT, J., dissenting:
G.R. No. 7480 November 22, 1912 - MIGUEL
chanrob1es virtual 1aw library

VELASCO Y CUARTERONI v. LAO TAM


I dissent. I think the appellant should be acquitted upon the facts stated in the majority opinion. This
023 Phil 495 court says: jgc:chanrobles.com.ph

G.R. No. 7520 November 23, 1912 - UNITED "The following conclusions of fact are derived from a careful study of this case: Upon the arrival of Maria
STATES v. JOSE ABAD Apego and her husband, Pio Bautista, at the stairs of their house, and as Genoveva Apego did not reply
to the call made to her from the outside by her sister Maria, the said spouses went to the upper floor of
023 Phil 504 the house; Bautista led the way and, in order to enter, opened the outside door, a sliding door, and as
there was no light inside stumbled against Genoveva Apego, who was sleeping near the said door, and
G.R. No. 7841 November 23, 1912 - LIM QUIM v. touched her left arm; thereupon, Genoveva awoke and believing, as she testified, that somebody was
INSULAR COLLECTOR OF CUSTOMS
trying to abuse her, seized the pocketknife aforementioned, asking at the same time who was beside her,
and as she did not receive a reply immediately, she got up and struck the person before her a blow with
023 Phil 509
the said knife; in the meanwhile Maria Apego had separated from her husband to light a match and then
G.R. No. 7897 November 23, 1912 - UNITED a kerosene lamp there was in the house and was not aware of the assault made upon her husband by her
STATES v. FULGENCIO CONTRERAS, ET AL. sister, and only when the light had been lit did she see her sister Genoveva in front of Bautista, who had
already been wounded and was in an attitude indicating that he was about to fall to the floor; . . .
023 Phil 513
". . . the defendant’s testimony must be accepted, to wit, that she struck a blow with the pocketknife at
G.R. No. 5675 November 26, 1912 - JOSE CARLOS the person beside her, and who afterwards turned out to be her brother-in-law, without knowing who he
CHUNG MUY CO’S ADMINISTRATOR v. LIM QUIOC, ET was and in the belief that, since he touched her left arm, he was about to commit an attempt against her
AL honor."cralaw virtua1aw library

023 Phil 518 The court further finds that the appellant immediately upon discovering what she had done ran out of the
house calling for help, and that she, her sister, and the deceased were on the very friendliest of terms.
G.R. No. 6693 November 26, 1912 - ROBERT G.
SHIELDS v. JOSE MCMICKING The result is that the appellant, a single woman 25 years of age, was alone in the house when the
deceased and his wife arrived. The entry was made without the appellant’s knowing anything about it,
023 Phil 526 and she was awakened by someone stumbling against her and touching her left arm. She then realized
that someone was in the house, and, it being so dark that she could not distinguish the person, and
G.R. No. 7718 November 27, 1912 - UNITED believing as the court says, that the person had entered for the purpose of raping her, she arose and
STATES v. LEE CHIAO struck in the dark with the knife. It later developed that she had struck her own brother-in-law and killed
him.
023 Phil 543
The very moment she awoke was when she conceived the idea that some one had entered the house for
G.R. No. 7627 November 30, 1912 - CITY OF the purpose of raping her. In the short interval of time between her awakening and the striking of the
MANILA v. MANILA ELECTRIC RAILROAD AND LIGHT fatal blow, was there any possibility of her disabusing her mind of such a belief, which, to her, must have
CO.
amounted to an over-powering her? The wife of the deceased did not strike the match nor light the lamp
023 Phil 547 until after the appellant had struck the blow. All was in darkness. It was, then, impossible for her to
ascertain the identity of the deceased before she had used the knife. So far as the record shows, no word
was spoken by either of the spouses until after the blow had been delivered, and the accused received no
reply to her inquiry as to who was beside her. We must appreciate, therefore, the entrance of the spouses
with more or less noise, their groping around in darkness of the interior of the house, the awakening of
the defendant from a sound sleep, her being alone in the house, her instant thought that some one is
coming toward her intent upon committing a rape, increased by the failure of the deceased to answer her
question, and the utter absence of anything to disabuse her mind of such an idea. With her mind still
somewhat sluggish, she realizes the presence of some one bending over her; she knows she is not alone
in the house; the person bending over her has not uttered a word; he makes no reply when she asks him
who he is; and she is unable to recognize him. What more natural than that a virtuous woman would
instantly arrive at the conclusion that she was about to be made the victim of an immoral and lewd
assault? The court says that in the absence of any evidence showing resentment existing between the
deceased and the accused, her testimony to the effect that she believed an attempt was being made
against her honor must be believed. I fail to see what possible bearing resentment entertained by the
accused toward the deceased would have. She did not recognize her assailant until after the light had
been struck. The identity of the deceased did not enter into her belief that she was about to be raped.
Had her assailant been her worst enemy she would not have known it until after the harm had been
done. But the facts of the case conclusively show that the accused entertained no resentment toward the
deceased. The wife of the deceased testified that her sister had lived in the house for a long time and
that she and her sister had always been on the most amicable of terms. After the accused became aware
of the identity of the deceased she made not the slightest move to continue her attack or defense. I
therefore agree with the conclusion of the court — but without reservation — that the testimony of the
defendant that she struck the blow under the impression that she was about to become the victim of an
unchaste assault must be accepted as true.

http://www.chanrobles.com/cralaw/1912novemberdecisions.php?id=200 3/5
9/27/2018 G.R. No. 7929 November 8, 1912 - UNITED STATES v. GENOVEVA APEGO<br /><br />023 Phil 391 : NOVEMBER 1912 - PHILIPPINE…

If the defendant believed that she was subjected to such an unlawful attack, the question arises, was
such a belief excusable under the circumstances?

"The party killing, to justify, must have reasonable apprehension or fear of death or serious bodily harm,
at the time of the killing. . . . But to whom must he appearance of danger — the apprehension of the
party killing — reasonably appear? To the jury after hearing all the evidence — after ascertaining the real
facts? . . . Or, must the real or apparent danger appear to the defendant at the time of the homicide to
be reasonable? We think the latter correct. The jury must view the facts upon his standpoint. Each juror
must place himself in the position of the defendant at the time of the homicide, and determine from all
the facts, as they appeared to defendant at the time of the killing, whether his apprehension or fear of
death or serious bodily harm was reasonable; and, if so, they should acquit." (Bell v. The State, 20 Tex.
App., 445, and other authorities cited in the monographic note to The States v. Sumner, 74 Am. St. Rep.,
707, 723.)

I think that the circumstances of the case at bar, so far as the appellant could perceive them at the time,
were perfectly applicable to an assault with intent to commit rape, and that, therefore, the only possible
way to arrive at a decision in this case on the merits is to view the whole affair from the moment the
defendant awoke until the fatal blow was struck as an attempt to commit rape, which resulted in the
death of the ravisher. The court does not expressly state its views on this branch of the case. I
understand, however, that the sentence of conviction is based upon the theory that the accused exercised
her right of self-defense to a disproportionate degree. At least such would be gathered from the following
language: jgc:chanrobles.com.ph

". . . and although the defendant believed that it was the commencement of such an attempt and that
she had to defend herself therefrom, it is true that, once awake and provided with an effective weapon
for her defense, there was no just nor reasonable cause for striking a blow therewith in the center of the
body, where the principal vital organs are seated, of the man who had not performed any act which
might be considered as an actual attempt against her honor." cralaw virtua1aw library

As a matter of fact, the acts of the deceased were perfectly harmless. There was, as a matter of law,
based upon those actual facts, no unlawful aggression. Based upon those actual facts of the case, there
was no excuse whatever for the homicide. Based upon those actual facts, the crime of homicide was
committed with several aggravating circumstances. The court, however, has imposed a sentence of two
years imprisonment and accessories. I must therefore believe that the court has tacitly, at least adopted
the view that the sentence of conviction should be predicated; upon the following operative facts: A
would be ravisher approached the accused in the house where she was sleeping alone,. etc.; in
exercising her right of self-defense, she exceeded the limits of reasonable resistance against her
assailant. In this view of the case, the question arises as to whether a woman may ever go so far in
defense of her chastity as to kill her assailant, and if so, whether such extreme action was warranted in
view of the circumstances as they presented themselves to the accused at the time she killed the
deceased. To the first part of this question the answer must be, yes. In repulsing a felonious attack a
person may go as far in his self-defense as may reasonably be necessary, viewing the circumstance of
the case from his point of view. The books are full of cases where this principle has been applied; but it is
doubtful if any may be found where the victim of an attempted rape was tried for the murder of her
assailant. In the case of United States v. Santa Ana (22 Phil. Rep., 249), this court, in banc, said: jgc:chanrobles.com.ph

"When a man becomes so debased as to lose every instinct of manhood and engages himself in the
commission of so serious a crime (rape), he certainly takes his life and liberty in his own hands, and if he
loses the latter or receives serious personal injuries, his loss is no greater than he deserves. The
appellant is therefore entitled to an absolute acquittal upon the ground of self-defense." cralaw virtua1aw library

As to the second part of the question, it is necessary to again view the circumstances of the case as they
appeared to the appellant at the time she struck the blow with the knife. The court is of the opinion that
she was not justified in striking that blow because it says the man "had not performed any act which
might be considered as an actual attempt against her honor." This statement is inexplicable. The only
acts which the deceased performed at all were those of stumbling against her body and touching her left
arm, and the court had already arrived at the conclusion that the woman believed an attack was being
made against her honor. In other words, the attempt had progressed to the point where her assailant had
come in physical contact with her. Due either to willfulness or negligence, he did not reassure her as he
should have done by answering her inquiry as to who he was. He was not merely standing at a distance
threatening her or making indecent gestures. She was alone in the house. There was no possible way of
retreat. Her physical inferiority muse be conceded. In another instant he would have grasped her by the
arms and thus prevented her from using the knife at all. Was this the time to temporize, to threaten, to
plead for mercy, or to strike halfheartedly with a weapon which would be useless to her in another
moment of time? The court would have had her select a less vital part of the body for the blow; this in
the darkness and most probably without being able to distinguish even the outlines of the human being
who had attacked her. This would have called for deliberation and cool and discriminating but instant
action. Every indication points to the fact that she struck wildly, perhaps while not yet fully awake, and,
by the merest chance, with fatal results.

In the case of United States v. Ah Chong (15 Phil. Rep., 488), the defendant, Ah Chong, and Pascual
Gualberto, were employed at the officers’ mess in Fort McKinley, the former as a cook and the latter as a
muchacho. The two occupied the same room and no one else occupied the same building. On the night of
August 14, 1908, Gualberto had gone out for a walk, leaving Ah Chong alone in the room. About 10
o’clock on that night Ah Chong was suddenly awakened by some one trying to force open the door of the
room. He called out, "Who is there?" Receiving no reply, he said: "If you enter the room I will kill you."
He then seized a knife and went to the door, which was suddenly pushed open, and Gualberto entered. It
was very dark in the room. Ah Chong struck out wildly at the intruder, and inflicted blows upon Gualberto
which very shortly thereafter resulted in his death. Ah Chong thought the intruder was a ladron. He was
tried for the killing of Gualberto and found guilty of homicide and sentenced to six years and one day of
presidio mayor. Upon appeal he was acquitted. This court said, pp. 492, 493: jgc:chanrobles.com.ph

"Under these provisions (Art. 8, Penal Code) we think that there can be no doubt that defendant would
be entitled to complete exemption from criminal liability for the death of the victim of his fatal blow, if the
intruder who forced open the door of his room had been in fact a dangerous thief or ladron as the
defendant believed him to be.

x x x

"But the evidence clearly discloses that the intruder was not a thief or ladron. That neither the defendant
nor his property nor any of the property under his charge was in real danger at the time when he struck
the fatal blow. That there was no such ’unlawful aggression’ on the part of a thief or ladron as defendant
believed he was repelling and resisting, and that there was no real ’necessity’ for the use of the knife to
defend his person or his property or the property under his charge." cralaw virtua1aw library

In this case a strong man, Ah Chong, was acquitted for killing his friend upon the ground that he believed
that the intruder was a thief or a ladron seeking entrance for the purpose of larceny or robbery. In the
case at bar, a woman is convicted because she exceed the means necessary to defend her honor. Had she
stated that she believed that the person who touched her arm had entered for the purpose of larceny or
robbery, the two cases would have been, mutatis mutandis, identical; and under the former, the court
had followed the doctrine laid down in that case, she would have been acquitted. But as she was

http://www.chanrobles.com/cralaw/1912novemberdecisions.php?id=200 4/5
9/27/2018 G.R. No. 7929 November 8, 1912 - UNITED STATES v. GENOVEVA APEGO<br /><br />023 Phil 391 : NOVEMBER 1912 - PHILIPPINE…
defending her honor she has been convicted. The court squarely places the loss of the property in the
former case above the loss of the honor and virtue of a woman in the latter case. To my mind there is no
comparison between the gravity of the two offenses. The loss of a few personal articles, either by theft or
robbery, cannot compare with the loss of a woman’s virtue taken from her forcibly. Rape is one of the
most heinous crimes, from a moral standpoint, known to the human race. A virtuous woman had rather
die than be raped. Yet, under the doctrine enunciated by this court, she is not authorized to use the same
means in repelling a vicious attacked upon her honor that she would be in defending her personal
property. Considering the cases together, this court has said that a man may kill a person whom he
believes to be entering his premises at nighttime for the purpose of robbery, but that a woman must not
go to that extent to defend her honor. I cannot assent to such a holding.

The appellant should be, in my opinion, acquitted.

Back to Home | Back to Main

QUICK SEARCH

1901 1902 1903 1904 1905 1906 1907 1908


1909 1910 1911 1912 1913 1914 1915 1916
1917 1918 1919 1920 1921 1922 1923 1924
1925 1926 1927 1928 1929 1930 1931 1932
1933 1934 1935 1936 1937 1938 1939 1940
1941 1942 1943 1944 1945 1946 1947 1948
1949 1950 1951 1952 1953 1954 1955 1956
1957 1958 1959 1960 1961 1962 1963 1964
1965 1966 1967 1968 1969 1970 1971 1972
1973 1974 1975 1976 1977 1978 1979 1980
1981 1982 1983 1984 1985 1986 1987 1988
1989 1990 1991 1992 1993 1994 1995 1996
1997 1998 1999 2000 2001 2002 2003 2004
2005 2006 2007 2008 2009 2010 2011 2012
2013 2014 2015 2016

Main Indices of the Library ---> Go!

Copyright © 1998 - 2018 ChanRobles Publishing Company | Disclaimer | E-mail Restrictions ChanRobles™ Virtual Law Library™ | chanrobles.com™ RED

http://www.chanrobles.com/cralaw/1912novemberdecisions.php?id=200 5/5
9/27/2018 G.R. No. L-47722

Today is Thursday, September 27, 2018

Custom Search

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

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

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.

Antonio Z. Oanis in his own behalf.


Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee.

MORAN, J.:

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

In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at
Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received
escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod
accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta,
and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the
office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper
clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the
instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise
called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he
answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of
police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and
failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two
groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the
house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida
Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place
and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately
returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and
Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they
were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the
gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the
defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and
killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson,
Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to
who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was
thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds
inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death.

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

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

The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are
vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory.
Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking
up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to
sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed
Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still
lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of
the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and
corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson
was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both
appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was
still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot
Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to
observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony

https://www.lawphil.net/judjuris/juri1943/jul1943/gr_l-47722_1943.html 1/5
9/27/2018 G.R. No. L-47722
and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's
testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity.
In her cross-examination, even misleading questions had been put which were unsuccessful, the witness having
stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in
disturbing the findings of fact made by the trial court.

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

In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah
Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed
without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by
someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that
precise moment, he was struck by a chair which had been placed against the door and believing that he was then
being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-
mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night
and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He
was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was
loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances,
there is an innocent mistake of fact committed without any fault or carelessness because the accused, having no
time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no
alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant
case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press
them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to
ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort
to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only
legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not
to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by
him.

Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and
detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself
from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating
him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S.,
par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force
shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is
necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal
liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109).
It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to
the peace of the community, but these facts alone constitute no justification for killing him when in effecting his
arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the
principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242).

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

The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental.
In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another
act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un
hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de dañar; existiendo esa
intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente
el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed.
pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the
idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such
unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless
imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability.

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

For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the
mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5)

https://www.lawphil.net/judjuris/juri1943/jul1943/gr_l-47722_1943.html 2/5
9/27/2018 G.R. No. L-47722
years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay
the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs.

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

Separate Opinions

PARAS, J., dissenting:

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

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

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

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

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

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

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

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

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

HONTIVEROS, J., dissenting:

According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be taken by
storm without regard to his life which he has, by his conduct, already forfeited," whenever said criminal offers
resistance or does something which places his captors in danger of imminent attack. Precisely, the situation which
confronted the accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24, 1938,
was very similar to this. It must be remembered that both officers received instructions to get Balagtas "dead or

https://www.lawphil.net/judjuris/juri1943/jul1943/gr_l-47722_1943.html 3/5
9/27/2018 G.R. No. L-47722
alive" and according to the attitude of not only the said appellants but also of Capt. Monsod, constabulary provincial
inspector of Nueva Ecija, it may be assumed that said instructions gave more emphasis to the first part; namely, to
take him dead. It appears in the record that after the shooting, and having been informed of the case, Capt. Monsod
stated that Oanis and Galanta might be decorated for what they had done. That was when all parties concerned
honestly believed that the dead person was Balagtas himself, a dangerous criminal who had escaped from his
guards and was supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met
upon arriving at the house of Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas was
upstairs. Appellants found there asleep a man closely resembling the wanted criminal. Oanis said: If you are
Balagtas stand up," But the supposed criminal showed his intention to attack the appellants, a conduct easily
explained by the fact that he should have felt offended by the intrusion of persons in the room where he was
peacefully lying down with his mistress. In such predicament, it was nothing but human on the part of the appellants
to employ force and to make use of their weapons in order to repel the imminent attack by a person who, according
to their belief, was Balagtas It was unfortunate, however that an innocent man was actually killed. But taking into
consideration the facts of the case, it is, according to my humble opinion, proper to apply herein the doctrine laid
down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an
innocent mistake of fact committed without any fault or carelessness on the part of the accused, who having no time
to make a further inquiry, had no alternative but to take the facts as they appeared to them and act immediately.

The decision of the majority, in recognition of the special circumstances of this case which favored the accused-
appellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked, and therefore,
according to Article 69 of the Revised Penal Code, the imposable penalty should be one which is lower by one or
two degrees than that prescribed by law. This incomplete justifying circumstance is that defined in Article 11, No. 5
of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty or in the lawful exercise of a
right or office." I believe that the application of this circumstance is not proper. Article 69 of the Revised Penal Code
provides as follows:

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

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

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

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

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

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

If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor of the
acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this accused ever hit
Serapio Tecson. Galanta was armed in the afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit L).
He so testified and was corroborated by the unchallenged testimony of his superior officer Sgt. Valeriano Serafica.
According to this witness, since Galanta was made a corporal of the Constabulary he was given, as part of his
equipment, revolver Exhibit L with a serial No. 37121. This gun had been constantly used by Galanta, and,
according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from his trunk in the barracks
on the night of December 24, 1938, upon order of Captain Monsod, it was the same revolver which was given to the
witness with five .45 caliber bullets and one empty shell. Fourteen unused bullets were also taken from Galanta by
Sergeant Serafica, thus completing his regular equipment of twenty bullets which he had on the morning of
December 24, 1938, when Sergeant Serafica made the usual inspection of the firearms in the possession of the
non-commissioned officers and privates of the constabulary post at Cabanatuan. Galanta stated that he had fired
only one shot and missed. This testimony is corroborated by that of a ballistic expert who testified that bullets
exhibits F and O, — the first being extracted from the head of the deceased, causing wound No. 3 of autopsy report
Exhibit C and the second found at the place of the shooting, — had not been fired from revolver Exhibit L nor from
any other revolver of the constabulary station in Cabanatuan. It was impossible for the accused Galanta to have
substituted his revolver because when Exhibit L was taken from him nobody in the barracks doubted that the
deceased was none other than Balagtas. Moreover, Exhibit L was not out of order and therefore there was no

https://www.lawphil.net/judjuris/juri1943/jul1943/gr_l-47722_1943.html 4/5
9/27/2018 G.R. No. L-47722
reason why Galanta should carry along another gun, according to the natural course of things. On the other hand,
aside from wound No. 3 as above stated, no other wound may be said to have been caused by a .45 caliber
revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45
caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a
.45 caliber bullet, but inasmuch as the diameter of the wound's entrance was only 8 mm., the caliber should be .32
and not .45, because according to the medico-legal expert who testified in this case, a bullet of a .45 caliber will
produce a wound entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who
performed the autopsy appeared to have been caused by bullets of a lesser caliber. In consequence, it can be
stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson and therefore there is no reason why he
should be declared criminally responsible for said death.

The Lawphil Project - Arellano Law Foundation

https://www.lawphil.net/judjuris/juri1943/jul1943/gr_l-47722_1943.html 5/5
9/27/2018 G.R. No. L-45964

Today is Thursday, September 27, 2018

Custom Search

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-45964 April 25, 1939

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
RESTITUTO FALLER (alias R. Aguilar), defendant-appellant.

L. D. Lockwood for appellant.


Office of the Solicitor-General Tuason for appellee.

AVANCEÑA, C. J.:

Restituto Faller was charged with the crime of damage caused to another's property maliciously and willfully. After
hearing the evidence, the Court of First Instance of Rizal found that the damage was not cause maliciously of and
willfully, but through reckless imprudence, and sentenced Restituto Faller, under paragraph 3 of article 365 of the
Revised Penal Code, as principal in the crime of damage through reckless imprudence, to pay a fine of P38 and to
indemnify the offended party Ramon Diokno in the same amount, with subsidiary imprisonment in case of
insolvency. From this decision, an appeal was taken.

In this instance the appellant assigns as sole error of the court the fact that he was sentenced for a crime with which
he was not charged, contending that a crime maliciously and willfully committed is different from that committed
through reckless imprudence.

The court has not committed this error. The appellant was convicted of the same crime of damage to property with
which he is charged. Reckless imprudence is not a crime in itself. It is simply a way of committing it and merely
determines a lower degree of criminal liability. The information alleges that the appellant acted willfully, maliciously,
unlawfully and criminally. To this information no objection was interposed. Negligence being a punishable criminal
act when it results in a crime, the allegation in the information that the appellant also committed the acts charged
unlawfully and criminally includes the charge that he acted with negligence.

The appealed judgment is affirmed, with the costs to the appellant. So ordered.

Villa-Real, Imperial, Diaz, and Moran, JJ., concur.

Separate Opinions

LAUREL, J., concurring in the result:

If malicious mischief (art. 327, Revised Penal Code) is an offense distinct from damage to property by reckless
imprudence (art. 365, Revised Penal Code) and the latter is not necessarily included in the former or the situation
does not call for the application of other exceptions laid down by this court, the conviction of the accused under
article 365 of the Revised Penal Code, notwithstanding his prosecution under article 327 thereof, was erroneous. An
accused is entitled to be informed of the nature and cause of the accusation against him (par. 17, sec. 1, Art. III,
Constitution of the Philippines, in relation to section 15, par. 2, and section 6, par. 3, of General Orders, No. 58), and
for this purpose the law requires that a complaint or information must charge but one offense, subject to a single
exception (sec. II, General Orders, No. 58). There are two reasons, however, why the decision of the lower court
should be affirmed. First, because the constitutional and legal purpose has been amply served in this case, it
appearing that the accused himself, in the course of the trial, put up the defense that he was at most responsible for
the offense of damage to property by reckless imprudence. This is apparent from the following portion of the
decision of the lower court:

La defensa del acusado, que por cierto no declaro, se hace descansar en el hecho, primero, que el sitio
donde tuvo lugar la coalicion entre el truck y el automovil mencionado es de muy estrecha dimension, y que
no es extraño que ocurriese lo que acaecio. Otra cuestion es la de que no cabe condenar al aqui acusado
con daños a la propiedad bajo el articulo 327 del Codigo Penal Revisado, sino a lo sumo por daños a la
propiedad por imprudencia temeraria, porque no costa que el acusado habia obrado deliberadamente, esto
es, con malicia, y en tercer lugar, se ha discutido principalmente la cuantia de los daños, pues, segun la
defensa, estos no debieran montar a mas de diez pesos.

En cuanto al primera punto de la defensa se vuelve contra el mismo acusado, pues precisamente por ser
estrecha la rampa del puente debio obrar con mayor cuidado antes de hacer andar el autobus; en cuanto al
segundo punto, concurrimos con la defensa de que no procede aplicar al presente caso las disposiciones del
capitulo noveno del Codigo Penal Revisado referente a daños. . . .

Secondly, assuming that the two offenses here are dinstinct, I think that they are at least akin to each other so as to
justify the application of the rule laid down in United States vs. Solis (7 Phil., 195), and United States vs. Quevengco
(2 Phil., 412), On these grounds, I concur in the result.

The Lawphil Project - Arellano Law Foundation

https://www.lawphil.net/judjuris/juri1939/apr1939/gr_l-45964_1939.html 1/2
9/27/2018 G.R. No. L-45964

https://www.lawphil.net/judjuris/juri1939/apr1939/gr_l-45964_1939.html 2/2
[ GR No. 40903, Apr 28, 1934 ]

PEOPLE v. MARCELINO ACOSTA Y RIVERA +

DECISION

60 Phil. 158

IMPERIAL, J.:
This is an appeal taken by the defendant from the judgment rendered by
the Court of First Instance of Manila finding him guilty of the crimes of
rape and homicide and sentencing hin for the first crime to seventeen years,
four months and one day of prision correccionaland for the second, to
fourteen years, eight months and one day of reclusion temporal, with the
accessory penalties of the law, to indemnify the heirs of the offended party
in the sum of P1,000, and to pay the costs.
The information alleged:
"That within the time comprised between July, 1933 and October 22, of the
same year, in the City of Manila, Philippine Islands, the said accused, with
force, intimidation and abuse of confidence, did then and there willfully,
unlawfully and feloniously have sexual intercourse with Magdalena
Asegurado, a virgin over twelve (12) and under eighteen (18) years of age,
and as a consequence thereof, the said minor was infected with venereal
diseases and caused physical injuries which resulted in her death on
October 22, 1933.
"Contrary to law."
For many years prior to the dates stated in the information, the defendant
and the widow Gregoria Buenvenida lived together with the latter's two
daughters Magdalena and Virginia Asegurado, of 14 and 8 years of age,
respectively, in a house situated on 991 P. Noval Street in the City of
Manila. One day in July, 1933, at midnight, the defendant approached
Magdalena, entering the mosquito net under which she was sleeping; and,
threatening to kill her with the open penknife which he carried, if she did
not accede to his lewd designs, succeeded in having sexual intercourse with
her.
On that occasion, the defendant was suffering from gonorrhæa and
naturally he infected the offended party with the said disease. The offended
party did not complain to her mother nor did she suffer from the serious
consequences of the infection until the beginning of the month of
September when she complained of intense pains in the abdomen. At that
time the defendant was in Tarlac and, upon his return two days later, he
and Gregoria brought the offended party for treatment to the General
Hospital. She then had high fever and was in a critical and serious
condition for she was suffering from intense pains and she felt that she was
about to die.
In the hospital, she was examined by Dr. Paterno Pavino who discovered
that she was suffering from gonorrhæa and had been raped. Asked by him
who had raped her, she, after much hesitation, answered that it was the
man who was outside the hall and who later turned out to be the defendant.
The latter asked by the doctor, denied the accusation.
Inasmuch as the offended party was seriously ill and a surgical operation
alone could save her life, Dr. Fernando Galderon operated on her but he
had to desist from his intention to cut off her appendix because she was
found to be suffering from peritonitis. Dr. Calderon diagnosed the case as
salpingitis and asserted that the patient was suffering from gonorrhæa and
that she died as a consequence of said disease. In short, the doctor
categorically declared that the offended party died of peritonitis but that
this disease was caused by the gonorrhæa with which she had been
infected, which, in turn, had been produced by sexual intercourse. In other
words, although the direct and immediate cause of her death was
peritonitis, the same can also be traced to the sexual intercourse, which the
defendant had, as its concomitant and determining cause.
On the afternoon of October 3, 1933, Consuelo del Rosario, a friend of the
offended party, visited her at the General Hospital and in the short
conversation which she had with the patient, the latter disclosed to her that
she was seriously ill, that she believed that she was going to die and that the
author of her illness was the defendant who had raped her. On the
following day, Gregoria Buenvenida, accompanied by Consuelo, went to the
office of the secret service of the City of Manila and reported the case.
Detectives Quintos and Gallardo, acting upon Gregoria's statement that the
offended party was dying, went to the hospital and conversed with the
patient. Said patient could hardly utter a word and after repeatedly stating
that she was seriously ill and that she thought she was going to die, said
agents of the law reduced to writing her ante mortem statement. In the said
document the offended party again reiterated her statement that the
defendant had raped her and that it was he who had infected her with the
venereal disease. The offended party finally died on October 22, 1933, that
is, eighteen days after she had made her ante mortem statement.
The above stated facts have been conclusively and convincingly established
by the evidence for the prosecution. There is not the least doubt but that the
defendant abused the unfortunate girl, as alleged. Neither is there any
doubt that her death was caused by the sexual intercourse which he had
against the will of the offended party, although the immediate cause
thereof, as stated by Dr. Calderon, was the peritonitis which, in that case,
was but a mere complication of the gonorrhæa from which the patient was
suffering.
The question of law which now arises is whether the proven facts should be
considered1 as independent crimes of rape and homicide, or as the complex
crime of rape with homicide. In the information, the crime charged was the
latter and in his brief the Solicitor-General recommends that the defendant
be convicted of said complex crime. The trial court was not of that opinion
and convicted the defendant of the crimes of rape and homicide. Taking
into consideration the weight of the evidence and the fact that both crimes,
rape and homicide, were but the result of a single act, which is the sexual
intercourse, this court declares that such acts should be held as constituting
the complex crime of rape with homicide, in accordance with the provisions
of article 48 of the Revised Penal Code, as amended by Act No. 4000.
According to the above cited article, the penalty of reclusion
temporal prescribed for both crimes should be imposed in its maximum
degree, and nocturnity and abuse of superior strength should be taken into
consideration as aggravating circumstances in the commission thereof. One
of the said circumstances is compensated by the mitigating circumstance of
lack of intention on the part of the defendant to commit so grave a crime as
that produced, which this court takes into consideration in his favor.
Applying the rules of the Indeterminate Sentence Law, the penalty which
should be imposed is from twelve years of prision mayor to twenty years
of reclusion temporal.
Wherefore, and reversing the judgment appealed from, the defendant is
declared guilty beyond reasonable doubt of the complex crime of rape with
homicide and is hereby sentenced to the penalty the duration of which is
from twelve years, of prision mayor to twenty years of reclusion temporal,
with the accessory penalties of the law, and to indemnify the heirs of the
offended party in the sum of P1,000, with the costs of both instances de
oficio. So ordered.
Abad Santos, Butte, Goddard, and Diaz, JJ., concur.
9/27/2018 PEOPLE v. GERARDO CORNEL

[ GR No. L-204, May 16, 1947 ]

PEOPLE v. GERARDO CORNEL

DECISION
78 Phil. 458

PARAS, J.:
This is an appeal from a judgment of the Court of First Instance of Albay sentencing
the defendant, for the crime of homicide, to an indeterminate prison term ranging
from 8 years and 1 day of prision mayor to 14 years, 8 months and 1 day of reclusion
temporal, with corresponding accessory penalties, to indemnify the heirs of the
deceased, Fabian Burac, in the sum of P2,000, and to pay the costs.
The first feature of appellant's case as presented by his counsel de oficio, refers to the
alleged inadequacy of the evidence for the prosecution establishing appellant's
identity. Trinidad Coral, however, personally saw (1) the appellant suddenly assault
her deceased husband (Fabian Burac) with a bolo as the latter was descending the
stairs of his house in the barrio of San Miguel, municipality of Tabaco, Province of
Albay, at about 6 o'clock in the afternoon of June 8, 1945; (2) after Fabian Burac (then
wounded in the forehead) fell, the appellant throw a stone which hit Fabian's right
clavicle, and (3) the appellant thereafter fled in the direction of his house. The positive
testimony of Trinidad was given full credit by the trial court, and the latter's
advantage of observing and hearing the witness should not be disregarded particularly
where, as in this case, Trinidad knew the appellant well and the latter merely relies on
the conjecture that Trinidad might have made a mistake in identifying her husband's
assailant, considering the time of the attack. Apart, therefore, from the testimony of
another witness for the Government (Caspara Bendicio) to the effect that when she
asked Fabian not long after the incident in question as to what had happened, Fabian
replied that he had been boloed by the appellant, which testimony (alleged by the
appellant to be inadmissible) was accepted by the trial court under the rule of res
gestae, there is sufficient proof regarding appellant's identity. Moreover, it should be
remembered that the appellant was prosecuted, though only for physical injuries,
even before Fabian's death which occurred several days after June 8, 1945.

http://lawyerly.ph/juris/view/c2818 1/2
9/27/2018 PEOPLE v. GERARDO CORNEL

Under the third assignment of error, counsel for the appellant adopts the view that the
wound on Fabian's forehead, described by Dr. Mariano Cruel, a government witness,
as "an incised vertical wound extending from a little above the middle of the eyebrows
down to the lower root of the nose," and cutting "the frontal and the nasal bones also,"
was produced not by a bolo or any long, sharp-cutting weapon but by an irregular and
hard object with a sharp edge such as a heavy piece of stone with one or more sharp
edges which, when thrown forcibly from a distance, will necessarily produce, a small
apparently "incised" wound and render the victim unconscious. This contention may
be tenable in forensic medicine, but it is still conjectural and cannot be accepted
where a criminal assault is proved through an eyewitness.
Contrary to appellant's pretension, the death of Fabian Burac is established by the
testimony of his wife and mother-in-law. The certificate of the civil registrar of Tabaco
dated August 3, 1945, to the effect that the matter had not been registered in his
office, merely shows that no report was made up to the date mentioned, but it cannot
conclusively negative the fact of Fabian's death.
We have no doubt that Fabian Burac died, as certified by Dr. Mariano Cruel, "of
tetanus secondary to the infected wound." When Fabian last reported for treatment on
June 15, 1945, Dr. Cruel already noticed Fabian's rigid muscles and slight lock-jaw,
and this is the very reason why he prescribed anti-tetanic serum, which, not being
then available in the place, was never actually administered on the patient. Appellant's
surmise that Fabian might not have died of tetanus, because there are other diseases
sometimes exhibiting symptoms of tetanus, cannot prevail against the conclusion of
Dr. Cruel who in fact treated Fabian's wound and saw the manifestations of tetanus.
The appellant must of course be held responsible for the natural consequences of his
unlawful act. (People vs. Borbano, 76 Phil., 702.)
Appellant's defense of alibi that between 5 p. m. of June 8, 1945 and the morning of
June 9, 1945, he was in Tabaco, Albay, may be worth inquiring into, if Trinidad Coral
(already found to be truthful) was not an eyewitness to appellant's criminal attack.
The motive for the offense is undoubtedly supplied by circumstance that Fabian once
arrested and threatened the appellant during the Japanese occupation.
The appealed judgment is hereby affirmed, with costs against the appellant. So
ordered.
Pablo, Perfecto, Bengzon, Hontiveros, and Tuason, JJ., concur.

http://lawyerly.ph/juris/view/c2818 2/2
9/27/2018 G.R. No. 42607

Today is Thursday, September 27, 2018

Custom Search

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 42607 September 28, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
JUAN QUIANZON, defendant-appellant.

Pedro B. Pobre for appellant.


Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

Charged with and convicted of the crime of homicide in the Court of First Instance of Ilocos Norte, and sentenced to
an indeterminate penalty of from six years and one day of prision mayor, as minimum to fourteen years, seven
months and one day of reclusion temporal, as maximum, Juan Quianzon appeal to this court for the review of the
case.

On February 1, 1934, a novena for the suffrage of the soul of the deceased person was being held in the house of
Victoria Cacpal in a barrio, near the poblacion, of the municipality of Paoay, Ilocos Norte, with the usual attendance
of the relatives and friends. The incident that led to the filling of these charges took place between 3 to 4 o'clock in
the afternoon. Andres Aribuabo, one of the persons present, went to ask for food of Juan Quianzon, then in the
kitchen, who, to all appearances, had the victuals in his care. It was the second or third time that Aribuabo
approached Quianzon with the same purpose whereupon the latter, greatly peeved, took hold of a firebrand and
applied ran to the place where the people were gathered exclaiming that he is wounded and was dying. Raising his
shirt, he showed to those present a wound in his abdomen below the navel. Aribuabo died as a result of this wound
on the tenth day after the incident.

There is no conflict between the prosecution and the defense as regards the foregoing facts. The question to be
determined is who wounded Aribuabo. The prosecution claims that it was Juan Quianzon and, to prove it, called
Simeon Cacpal, Roman Bagabay, Gregorio Dumlao and Julian Llaguno to the witness stand.

The first witness, Simeon Cacpal, claims to have witnessed the wounding of Andres Aribuabo in the abdomen by
Juan Quianzon. However, we find the testimony of this witness so improbable, incongruent and contradictory that
we consider meritorious the claim of the defense that it was an error of the lower court to have taken it into
consideration in formulating the findings of its judgment. Not so with respect to the testimony of the other witnesses.
Roman Bagabay, one of the persons present at said gathering, testified that he saw Juan Quianzon apply a
firebrand to the neck of Andres Aribuabo who shortly afterwards went toward the place where the witness and the
other guests were gathered, telling that he was wounded and was going to die and naming Juan Quianzon as the
person who wounded him. He also testified that Juan Quianzon, upon being asked immediately by him about the
incident, admitted to him attacked Aribuabo with a bamboo spit. Gregorio Dumalao, a barrio lieutenant, who, upon
being informed of the incident, forthwith conducted an investigation, questioned Aribuabo and the latter told him that
it was the accused who had wounded him. He likewise questioned the accused and the latter, in turn, stated that he
had wounded the deceased with a bamboo spit. Upon being brought before Juan Llaguno, chief of police of Paoay,
for questioning, Quianzon confessed to Llaguno that he had applied a firebrand to Aribuabo's neck and had later
wounded him with a bamboo spit. Before the chief of police could put this confession of Quianzon in writing, the later
retracted, denying that he had wounded Aribuabo, for which reason in the affidavit Exhibit B the fact of having
applied a firebrand to Aribuabo's neck appears admitted by Quianzon but not of having wounded the deceased with
a bamboo spit.

The disinterestedness of these three witnesses for the prosecution, Bagabay, Dumalo and Llaguno, is not
questioned by the defense. Neither the accused, in his testimony, nor his counsel, in the brief filed by him in this
court, was able to assign any unlawful, corrupt or wicked motive that might have actuated them to testify falsely in
this case and knowingly bring about the imprisonment of an innocent person. Bagabay is not even a relative of the
deceased. Dumlao, the barrio lieutenant, is a nephew of the accused. Llaguno, chief of police of Paoay, is an officer
of the law whose intervention of this case was purely in compliance with his official duties. All the appellant has been
able to state in his brief to question the credibility of these witnesses is that they were contradicted by Simeon
Cacpal, the other witness for the prosecution, who testified that he had not seen them speak neither to Aribuabo nor
to Quianzon in the afternoon of the crime. But the position of the defense in invoking Simeon Cacpal's testimony for
the purpose of discrediting the other witnesses for the prosecution is untenable, after having vigorously impeached
said testimony, branding it as improbable, incongruent and contradictory. If Cacpal is a false witness — and the
court believes this claim of the defense as true — , none of his statements may be taken into account or should
exert any influence in the consideration of the other evidence in the case.

After discharging testimony of Simeon Cacpal, the evidence presented by the prosecution relative to the appellant's
criminal liability for the death of Andres Aribuabo, briefly consists, first, in the victim's statement immediately after
receiving the wound, naming the accused as the author of the aggression, and the admission forthwith made by the
accused that he had applied a firebrand to Aribuabo's neck and had wounded him, besides, with a bamboo spit.
Both statements are competent evidence in the law, admissible as a part of the res gestae (section 279 and 298,
No. 7, of the Code of Civil Procedure; U.S. vs. Macuti, 26 Phil., 170; People vs. Portento and Portento, 48 Phil.,
971). Second, in the extrajudicial confession of the accused to the barrio lieutenant, Dumlao, and later to the chief of
police Llaguno, in the same afternoon of the crime, that he was the author of Aribuabo's wound and that he had
inflicted it by means of a bamboo spit. Inasmuch as this confession, although extrajudicial, is strongly corroborated
and appears to have been made by the accused freely and voluntarily, it constitutes evidence against him relative to
his liability as author of the crime charged (U.S. vs. so Fo, 23 Phil., 379; People vs. Cabrera, 43 Phil., 64, 82; U.S.
vs. Jamino, 3 P.R.A., 52; Francisco's Quizzer on Evidence).

https://www.lawphil.net/judjuris/juri1935/sep1935/gr_42607_1935.html 1/3
9/27/2018 G.R. No. 42607
The defense of the accused consisted simply in denying that he had wounded the deceased and that he had
confessed his guilt to the witnesses Bagabay, Dumlao and Llaguno. But such denial cannot prevail against the
adverse testimony of these three veracious and disinterested witnesses, all the more because neither the accused
nor any other witness for the defense has stated or insinuated that another person, not the accused, might be the
author of the wound which resulted in Aribuabo's death, and because it is admitted by the defense that it was the
accused, whom Aribuabo had been pestering with request for food, who attacked the latter, burning his neck with a
firebrand, afetr which Aribuaboappeared wounded in the abdomen, without the accused and the witnesses for the
defense explaining how and by whom the aggression had been made.

It is contended by the defense that even granting that it was the accused who inflicted the wound which resulted in
Aribuabo's death, he should not be convicted of homicide but only of serious physical injuries because said wound
was not necessarily fatal and the deceased would have survived it had he not twice removed the drainage which Dr.
Mendoza had placed to control or isolate the infection. This contention is without merit. According to the physician
who examined whether he could survive or not." It was a wound in the abdomen which occasionally results in
traumatic peritonitis. The infection was cause by the fecal matter from the large intestine which has been perforated.
The possibility, admitted by said physician that the patient might have survived said wound had he not removed the
drainage, does not mean that the act of the patient was the real cause of his death. Even without said act the fatal
consequence could have followed, and the fact that the patient had so acted in a paroxysm of pain does not alter
the juridical consequences of the punishable act of the accused.

One who inflicts an injury on another is deemed by the law to be guilty of homicide if the injury contributes
mediately or immediately to the death of such other. The fact that the other causes contribute to the death
does not relieve the actor of responsibility. . . . (13 R. C.L., 748.)

Furthermore, it does not appear that the patient, in removing the drainage, had acted voluntarily and with the
knowledge that he was performing an act prejudicial to his health, inasmuch as self-preservation is the strongest
instinct in living beings. It much be assumed, therefore, that he unconsciously did so due to his pathological
condition and to his state of nervousness and restlessness on account of the horrible physical pain caused by the
wound, aggravated by the contract of the drainage tube with the inflammed peritoneum. "When the peritonitis is due
to traumatism, or to a perforation of the stomach, intestine or gall-bladder, etc., it is indicated by violent shivering
and pain first localized at a point in the abdomen, extending later to the entire abdominal wall; acute intolerable pain,
which is aggravated by the slightest movement, becoming unbearable upon contact with the hand, a rag, or the
bedclothes. The pain is continuous but it gives frequent paroxysms. The abdomen is swollen, tense. Vomittings of
the greenish matter, which are very annoying and terribly painful, take from the beginning and continue while the
disease lasts." (XVI Spanish-America Encyclopaedic Dictionary, 176; see also XXI Encyclopaedia Britannica, 1911
ed., 171.) If to this is added the fact that the victim in this case was mentally deranged, according to the defense
itself, it becomes more evident that the accused is wrong in imputing the natural consequences of his criminal act to
an act of his victim.

The question herein raised by the appellant has already been finally settled by jurisprudence. The Supreme Court of
Spain, in a decision of April 3, 1879, said in the case similar to the present, the following: "Inasmuch as a man is
responsible for the consequences of his act — and in this case the physical condition and temperament of the
offended party nowise lessen the evil, the seriousness whereof is to be judged, not by the violence of the means
employed, but by the result actually produced; and as the wound which the appellant inflicted upon the deceased
was the cause which determined his death, without his being able to counteract its effects, it is evident that the act in
question should be qualified as homicide, etc."

In the case of People vs. Almonte (56 Phil., 54), the abdominal wound was less serious than that received by
Aribuabo in this case, as it was not penetrating, merely involving the muscular tissue. In said case the death of the
victim was due to a secondary hemorrhage produced twenty-four hours after the wound had been inflicted, because
of the "bodily movements of the patient, who was in a state of nervousness, sitting up in bed, getting up and pacing
about the room, as as a consequence of which he internal vessels, already congested because of the wound, bled,
and the hemorrhage thus produced caused his death." The court in deciding the question stated that "when a
person dies in consequence of an internal hemorrhage brought on by moving about against the doctor's orders, not
because of carelessness or a desire to increase the criminal liability of his assailant, but because of his nervous
condition due to the wound inflicted by said assailant, the crime is homicide and not merely slight physical injuries,
simply because the doctor was of the opinion that the wound might have healed in seven days."

The grounds for this rule of jurisprudence are correctly set forth in 13 R.C.L., 751, as follows:

While the courts may have vacilated from time to time it may be taken to be settled rule of the common law
that on who inflicts an injury on another will be held responsible for his death, although it may appear that the
deceased might have recovered if he had taken proper care of himself, or submitted to a surgical operation,
or that unskilled or improper treatment aggravated the wound and contributed to the death, or that death was
immediately caused by a surgical operation rendered necessary by the condition of the wound. The principle
on which this rule is founded is one of universal application, and lies at the foundation of the criminal
jurisprudence. It is, that every person is to be held to contemplate and to be responsible for the natural
consequences of his own acts. If a person inflicts a wound with a deadly weapon in such a manner as to put
life in jeopardy, and death follows as a consequence of this felonious and wicked act, it does not alter its
nature or diminish its criminality to prove that other causes co-operated in producing the fatal result. Indeed, it
may be said that neglect of the wound or its unskillful and improper treatment, which are of themselves
consequences of the criminal act, which might naturally follow in any case, must in law be deemed to have
been among those which were in contemplation of the guilty party, and for which he is to be held responsible.
But, however, this may be, the rule surely seems to have its foundation in a wise and practical policy. A
different doctrine would tend to give immunity to crime and to take away from human life a salutary and
essential safeguard. Amid the conflicting theories of the medical men, and the uncertainties attendant upon
the treatment of bodily ailments and injuries, it would be easy in many cases of homicide to raise a doubt as
to the immediate cause of death, and thereby to open a wide door by which persons guilty of the highest
crime might escape conviction and punishment.

Assuming that we should disregard Simeon Cacpal's testimony, there is no evidence of record that the crime
charged was committed by means of the knife, Exhibit A, and we only have the extrajudicial admission of the
accused that he had committed it by means of a bamboo spit with which the wound of the deceased might have
been caused because, according to the physician who testified in this case, it was produced by a "sharp and
penetrating" instrument.

Inasmuch as the mitigating circumstances of lack of instruction and of intention to commit so grave a wrong as the
committed should be taken into consideration in favor of the appellant, without any aggravating circumstances
adverse to him, we modify the appealed judgment by sentencing him to an indeterminate penalty with a minimum of

https://www.lawphil.net/judjuris/juri1935/sep1935/gr_42607_1935.html 2/3
9/27/2018 G.R. No. 42607
four years of prision correccional and a maximum of a eight years of prision mayor, affirming it in all other respect,
with cost to said appellant.

Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

The Lawphil Project - Arellano Law Foundation

https://www.lawphil.net/judjuris/juri1935/sep1935/gr_42607_1935.html 3/3
9/27/2018 US v. ANDRES VILLANUEVA

[ GR No. 10606, Sep 11, 1915 ]

US v. ANDRES VILLANUEVA

DECISION
31 Phil. 412

ARELLANO, C.J.:
This case has come up on appeal from a judgment of the Court of First Instance of
Mindoro, by which Andres Villanueva was sentenced to two months, and fifteen days'
arresto mayor, accessory imprisonment, to indemnify the aggrieved party, Isidoro
Benter, in the sum of P21, or, in case of insolvency, to suffer subsidiary imprisonment
and to pay the costs.

According to the complaint Villanueva is charged "while quarreling with his opponent,
Isidoro Benter, with having suddenly snatched the bolo which the latter was carrying
at his belt and with it inflicting upon him a wound in the palm of the right hand that
incapacitated the aggrieved party from performing work for more than thirty days and
which rendered the said principal member entirely useless."

But it turns out that Villanueva was not Benter's opponent nor was there any quarrel
between the two. Neither did Villanueva inflict any wound upon Benter. The latter
injured himself by an accident arising out of his own act.

Benter himself testified that he had agreed to take Villanueva to the town of Pola in
his boat; that on arriving at the landing the boat was not there; that, thereupon he told
Villanueva that to avoid being late the latter ought to start right away; that while both
of them were standing with their arms folded it occurred to Villanueva to take hold of
the bolo which complainant carried at his belt; that the complainant tried to retain it
and that in doing so he caught it by the blade and cut himself in the palm of the right
hand; that without a word being said, either before or afterwards, Villanueva being in
the best of temper, on finding himself injured the complainant left the spot while
Villanueva remained there. The court:

http://lawyerly.ph/juris/view/cef2 1/5
9/27/2018 US v. ANDRES VILLANUEVA

"Q. When the accused took the bolo from you was he angry or was he in a good
temper? A. He was in a good temper.

"Q. What was his object in securing the bolo when he took it from your belt? A.
Because he suddenly snatched my bolo and I caught at it.

"Q. When did the accused note that you were wounded in the hand? A. When I
was leaving.

"Q. So that you did not show the cut to the accused right after you wounded
yourself? A. No, sir; I left at once.

"Q. When you told the accused that you did not have a banca at your disposal,
what sort of a temper was he in ? A. He did not speak.

"Q. Had there been any dispute between you prior to that date? A. No, sir."

Rufino Cabe and Nicolas Montejo, witnesses for the prosecution, learned at the time
from Benter that he was wounded, but the first did not discover from Benter how it
came about and the second testified that Benter had said nothing as to who had
wounded him.

And that is all there is in the record with respect to the act complained of.

Said act took place on the 5th of July, 1914, and the complaint was not filed until the
10th of October, 1914. Thus Benter was able to testify that the wound delayed in
healing for more than forty days. The trial was held on December 8, and then Benter
showed a scar in the right palm that ran from the base of tHe little finger to the first
joint of the index finger. The judge noted that the index finger was stiff and that the
man could not extend the ring finger. Neither was the allegation contained in the
complaint, to the effect that the right hand had been rendered entirely useless, proven
at the trial. The court asked the ctrujano ministrante called as an expert witness to
look at the scar to see if Benter could work as well with his hand in that state as when
it was in its former normal condition. The witness said no, for the reason that it was
not entirely healed inside; that on the other hand no arteries were injured, for if they
were, articulation would be impossible.
http://lawyerly.ph/juris/view/cef2 2/5
9/27/2018 US v. ANDRES VILLANUEVA

The principal charge of the accusation, that Villanueva inflicted upon Benter the
wound in question, is not proven in the slightest. The defense prayed for dismissal.
The prosecution did not oppose it. But the lower court denied the petition. The
defense renounced its right to present evidence. And the court pronounced judgment
of conviction in which he sums up the act complained of in the following language:
"That the accused, suddenly and without saying a word, drew the bolo from the sheath
in which the aggrieved party Isidoro Benter was carrying it at his belt; that the said
Isidoro Benter instinctively caught at the bolo to retain it and in so catching it with his
right hand, the said bolo, in sliding through with all its edge (with all its weight?)
wounded him across the entire width of the palm of the hand in a direction
perpendicular to the base of the fingers; the wound was not healed for more than 40
days."

According to this opinion it was the bolo that wounded Benter, not the accused. But
this notwithstanding "In the opinion of the court, the act complained of, as proven at
the trial, constitutes lesiones graves by reckless negligence, a crime provided for and
punished by article 568 of the Penal Code, because the accused, in taking the
prosecuting witness' bolo from its sheath, without intending to wound the latter,
performed an act which occasioned the wound in question, because he did not employ
that care and precaution which any person who was in the least careful would have
taken to avoid the evil which he produced."

The law speaks of a person who by reckless imprudence commits an act which, if
maliciously performed, would constitute a grave felony. (Art. 568, Penal Code.) But
the act of the accused in the case at bar does not constitute a felony, grave, or menos
grave, nor is it a misdemeanor. The only act which he performed was to take, or
attempt to take, from its sheath the bolo which Benter was carrying at his belt, and
that was an act which is not defined in any law as being a crime ov misdemeanor.

If the accused, in drawing the bolo from its scabbard, or if any other person in taking a
revolver from the belt of a person carrying it, should, by not employing proper care,
wound the latter, clearly, then, he would have to answer for his act of injuring the
other, as guilty of having caused an injury without malice and merely by reckless
negligence by reason of not using proper care. But the defendant did not wound
Benter. It was the latter who, by his own act in catching hold of the edge of the blade
of the bolo, wounded himself, or as is said in the judgment appealed from, the bolo, by

http://lawyerly.ph/juris/view/cef2 3/5
9/27/2018 US v. ANDRES VILLANUEVA

its edge or by its own weight, in slipping from Benteu's hand into the scabbard
because he did not grasp it firmly, wounded Benter; the bolo did this, not the
defendant.

The crime of lesiones graves (physical injuries) which the trial court understands to be
committed without malice or with reckless imprudence is thus classified in article 416
of the Penal Code: "Any person who shall wound, beat, or assault another * * * shall
suffer: 1. * * *. 2. The penalty of prision etc., if in consequence of the physical injuries
inflicted the injured person shall have lost an eye or any principal member, etc."

The defendant did not wound, beat, or assault Benter; consequently he cannot be
guilty of the crime of inflicting serious physical injuries, not even by reckless
imprudence. A similar case was decided by the appellate court on June 11, 1880:
"Whereas it appears that on the evening of the 26th of April, 1879, Cipriano
Belinchon, a mute, in company with his servant, Salustiano Sanchez, went to cut some
grass on the side of a declivity in a garden belonging to Evaristo Gomez; that the latter
came up and warned Cipriano not to do it again because he was keeping the grass for
use in his stables; that thereupon the mute became angry; that raising his sickle he
threatened Evaristo with it, whereupon the latter, in order to frustrate the blow,
caught hold of the sickle, saying, 'Ah, you rascal, you have cut me!' inflicting upon
himself various cuts on the three last fingers of the right hand that took until the 18th
of May to heal, * * *: Whereas, according to article 1 of the Penal Code, crimes are
willful acts and omissions punished by law: Whereas the only action attributed to the
defendant Cipriano Belinchon in the judgment appealed from is that of having
theatened to strike Evaristo Gomez with the sickle with which, a few moments before
being warned, he was cutting grass, it cannot therefore be doubted that this simple act
on the part of Belinchon cannot fall squarely within the penal sanction of article 431
that was applied by the trial court, the latter being of the opinion that a person is
responsible who wounds, beats or assaults another, causing him any of the physical
injuries set forth in the four paragraphs that constitute the article: Whereas the
injuries of this character, which render a member not a principal one useless, which
were inflicted upon Evaristo Gomez and are provided for in paragraph 3 of the said
article, were not the direct effect of a wound, blow or assault made upon him by
Belinchon, but by the indiscretion with which, when the sickle was raised and without
the necessary blow being struck, he seized the tool and cut his fingers an act which
could not possibly have been foreseen by the defendant nor have been prevented on
account of the rapidity with which it is to be imagined Gomez grasped the sickle that

http://lawyerly.ph/juris/view/cef2 4/5
9/27/2018 US v. ANDRES VILLANUEVA

was raised in the attitude to strike. * * * we therefore decree that the appeal taken by
Cipriano Belinchon Lucas from the judgment of the criminal sala of the Audiencia de
Albacete be sustained and the judgment is hereby reversed."

In the present case we have to take into consideration the fact that the defendant, in
taking or attempting to take the bolo from its scabbard, made not the slightest threat
or any indication of striking with it. His action appears to have been motived by mere
curiosity.

The judgment appealed from is reversed. We freely acquit Andres Villanueva with the
costs of both instance de officio. So ordered.

Torres, Johnson, Carson, Trent, and Araullo, JJ., concur.

http://lawyerly.ph/juris/view/cef2 5/5
9/27/2018 US v. FELICIANO DIVINO

[ GR No. 4490, Dec 04, 1908 ]

US v. FELICIANO DIVINO

DECISION
12 Phil. 175

ARELLANO, C.J.:
This cause was brought against Feliciano Divino for the crime of lesiones graves, and
appealed by him to this court from a judgment of the Court of First Instance of Davao,
Moro Province, whereby he was sentenced to the penalty of two years eleven months
and eleven days of presidio correccional, with the accessory penalty of suspension
from all public office, profession, occupation, or right of suffrage, and to pay the costs
of the proceedings. The appeal having been heard, it appears

That in September, 1907, a complaint was filed and proceedings were instituted by
reason of a deed which, from the findings of the court below, is said to have occurred
four years ago on a certain night, "the date of which can not be determined from the
evidence," consisting of lesiones of which there is no further description than that
made by the court below at the trial as follows:
"The feet of the witness show several large scars which surround both feet,
beginning at the instep and extending to the sole all around the feet. The
appearance of the said scars indicates that they were not caused by blows
inflicted by a cutting instrument, but are the result of a lesion of considerable
width. In addition to the wide scar that surrounds each foot there are several
small scars (folio 103).

"The court observes that both feet are deformed at the instep as if they had been
tightly bound with a cord, and the resulting depression had become permanent.
The left foot is also quite deformed, the toes being separated to an abnormal
extent; the right foot is deformed in the same manner although not so much. The
soles of both feet are deformed on account of protuberances of what seems to be
callous matter." (Folio 109.)

http://lawyerly.ph/juris/view/c75b 1/16
9/27/2018 US v. FELICIANO DIVINO

With regard to said lesiones the complaint reads:


"That one day in the month of July, 1903, in the municipality of Davao, district of
Davao, Moro Province, the accused, in his house, tied a girl named Alfonsa by the
hands and legs, laid her on the floor, stuffed a piece of cloth into her mouth, and
fastened her body to the boards of the said floor; he then wrapped her feet
around with pieces of cloth, saturating said cloth with petroleum, and thereafter
set the cloth:on fire by means of a match; the cloth burned for about five minutes
or more, seriously burning the girl's feet, and causing lesiones in said members
from the result of which the said girl became disabled in the said principal
members." (Folio 18.)

The so-called Alfonsa does not know her age, but the court below, however, estimated
her to be 13. Neither does she know who are her parents; her former surname was
Divino but is now Esperat, and she calls Segundo Esperat her father, because she says
she lived in his house a month; when asked if Esperat was her true father, she
answered no, that she was only his adopted child. She described the affair in the
following manner:
"I was in the kitchen preparing food and they sent for me to go to the sala. After I
was in the sala Feliciano's daughter took a rag and soaked it in petroleum.
Feliciano then ordered me to lie down on the floor. Feliciano's eldest daughter
took a rag and forced it into my mouth. She then got another rag and blindfolded
me with it. Felieiano's daughter then got a pestle used for hulling rice and
handed it to Feliciano who placed it across my legs, tying its ends to the floor so
that I was unable to stir. While I was in this position on the floor; Feliciano's
daughter caught me by the head and shoulders and held me down. Feliciano
then lighted a match and set fire to my feet. They left me thus for the length of
time required to smoke two cigarettes and until the flames were extinguished.
After half a minute Feliciano released me and took me to the storehouse; there
they left me and looked the door. At noon they gave me some food; they kept me
three nights in the storehouse. Afterwards they took me out and locked me up in
the hog-pen; they left me there without any covering and exposed to the open air,
but they afterwards fixed up a temporary cover to protect me."

And in answer to questions put to her, she continued to say that there were present in
the sala while Feliciano was burning her feet, Clara, the eldest daughter of the latter,
who was then 13 years old, and the younger ones Nining and Nating together with
http://lawyerly.ph/juris/view/c75b 2/16
9/27/2018 US v. FELICIANO DIVINO

three servants, Petra, Catalina, and Pedro; that while they were burning her feet,her
hands were tied alongside her body; that Clara, Feliciano's daughter, held her by the
head and shoulders; that a stick was placed over her legs and tied to the floor, and
another was put over her chest and also tied to the floor; that thereafter she was taken
to a storeroom beneath the house wherein she remained three days and nights, and
from thence she was taken to a hog-pen in the rear of the kitchen, which she now says
had a roof, remaining there one month, and that when she left it she continued to live
in the house for three months, until one day, at midnight, without the knowledge of
Feliciano, she left in company of a girl named Irinea for the purpose of making a
complaint; that they then went to the office of Mr. Wood, which gentleman was
present in the court-room (pointing him out). And when asked where Mr. Wood's
office was she pointed out the government building of the district of Davao.

On cross-examination she said that a Bagobo named Andalan had taken her over to
Feliciano's house to live; that she did not know whether her parents were Bagobos,
nor who they were, and that, when she reached the age of reason, she found herself in
the house of Feliciano, so that her first recollections are of the time when she was in
Feliciano's house; that she had reported the matter to the American military governor,
but to the questions of the counsel for the defense as to whether any action was taken,
the fiscal objected and the court sustained the objection ; that, when she went to
Feliciano's house, she already had a scar on the left cheek and another near the
mouth; that they tied her body with a rope, bound her hands, placed over her legs a
pestle such as is used for hulling1 rice, and the three daughters sat on her head and
shoulders (it is no longer one daughter who held her down by the head and
shoulders). Subsequently these question were put:

http://lawyerly.ph/juris/view/c75b 3/16
9/27/2018 US v. FELICIANO DIVINO

"Q. How many times was the rope passed around your body? A. Three times.

"Q. Before the pestle was placed over you? A. Yes, sir.

"Q. What was the rope tied to, the floor? A. Yes, sir.

"Q. Tell me for the last time, is it actually true that, when the said stick was
placed over you, you were already tied down with the rope? A. Yes, sir.

"Q. When you were tied down, do you mean that the rope passed through the
crevices of the floor? A. Yes, sir.

"Q. You say that this rope passed through one crevice in the floor and came out
by another, fastening you to the floor; do you not? A. Yes, sir.

"Q. Was no one beneath the house when this occurred? A. No, sir.

"Q. Before placing the rag over your feet, is it true that they first soaked it with
petroleum and then placed it on your feet? A. Yes, sir.

"Q. How long did the rag burn? A. Nearly an hour and a half."

By the court:
"Q. Do you mean to say that the rag was burning on your feet for an hour and a
half? A. Yes, sir.

"Q. How many cigarettes could you have smoked while the rags were burning? A.
About two cigarettes.

"Q. How long have you been testifying this afternoon? A. I don't know.

"How many cigarettes could you have smoked since you arrived up to the present
time? A. Four cigarettes.

"Note by the court. The witness has been testifying two hours."

http://lawyerly.ph/juris/view/c75b 4/16
9/27/2018 US v. FELICIANO DIVINO

Another witness called Petra, who has no surname and does not know the race to
which she belongs nor what age she is, although the court below reckons her to be
between 17 and 21, and who lives in Davao, with Maria (the accused's third wife who,
according to other data contained in the proceedings, was at the time separated from
him), declares that Alfonsa's injuries were the result of the burns caused by the
accused one night; that the latter called her, laid her on the floor of the sala of the
house, tied her down, placing sticks over her chest and feet, put some rags on the
latter and set fire to them, the flames lasting the time required to smoke one cigarette
and a half (Alfonsa said two cigarettes and afterwards one hour and a half); she
further testified in relation to the incidents of the storeroom and the hog-pen, and
said that, while she was still in the sala, she saw the feet, that the skin was swollen,
and that Alfonsa was kept for one year in the hog-pen. But upon being afterwards
asked by the court how many months there were in a year she said: "One crop of rice,"
and that she did not know how many months there were in a year, nor days in the
week nor hours in a day, and that, when saying one year, she meant a long time; that
when she left the house Alfonsa was still in the hogpen. Regarding the rope with
which she says Alfonsa was bound, there are the following questions:

http://lawyerly.ph/juris/view/c75b 5/16
9/27/2018 US v. FELICIANO DIVINO

"Q. In order to tie this rope to the floor is it not true that four nails were driven in
the floor? A. No, sir; the rope was simply tied to the floor, to the listones (strips
used in filling crevices between the boards).

"Q. Did this rope with which She was tied pass entirely around her body? A. No,
it was the stick that was tied down to the floor.

"Q. Then you mean to say that the rope did not go around Alfonsa's body but that
it was only tied to the stick? A. Yes, and the stick was tied to the boards of the
floor [entirely the reverse of what Alfonsa testified].

"Q. Was anybody beneath the house? No, sir.

"Q. Were the strips of palma brava wide or narrow? A. They were narrow.

"Q. What distance was there between the strips? A. There were cracks between
them.

"Q. Is it riot true that this was the distance between the strips [showing half an
inch]? A. No, sir; it was so [showing a quarter of an inch].

"Q. When Feliciano tied the rope to the floor he did it from above; did lie not? A.
I don't know, I did not see it done.

"Q. But you were in the sala at the time; were you not? A. Yes.

"Q. Were the other servants there also? A. Yes, sir."

She states that the rags burned during the time that is required to smoke a cigarette,
and then come the following questions:

http://lawyerly.ph/juris/view/c75b 6/16
9/27/2018 US v. FELICIANO DIVINO

"Q. Where do you live now? A. I am living with Maria.

"Q. Have you had any conversations with her in connection with these matters?
A. No, sir.

"Q. Is it not true that you told several people that you have had a talk with Maria
Verano, the wife of the accused? A. No, sir.

"Q. Did you go to live with Maria Verano after she separated from her husband?
A. Yes, sir."

The third witness for the prosecution is Mr. Orville Wood, 30 years of age,
agriculturist, residing in the municipality of Davao; he was formerly an assistant
superintendent of schools, arid later served as secretary of the district of Davao from
January, 1904, until the time when he testified; he states that he had been in the old
house of Feliciano, where the affair is said to have occurred, for about three hours
some time in 1905; that he knows Maria Verano who is married to Feliciano Divino,
and believes that he saw her the day before that on which he testified; that he has also
known Feliciano Divino since the year 1904, and that he knows Alfonsa, the girlwho
testified in court in his presence on that same day; and he described a conversation
that he had with Feliciano Divino on the balcony of the government building in the
following terms :
"When Feliciano first came to the balcony we spoke of another matter; what he
afterwards stated in connection with this matter was in answer to a question
finally addressed to him by Governor Bolton; Governor Bolton said to Feliciano
that he, Feliciano, had informed him previously that it was Maria who had
burned Alfonsa's feet, but Governor Bolton knew at the time that this was not
true, and asked him who had burnt her feet; Feliciano replied that it was he who
burnt Alfonsa's feet, but that his wife, Maria, had ordered him to do it; the
governor asked him who was the head of his house; he or his wife."

The witness goes on to say that hie subsequently spoke with Petra, Catalina, and
Pedro in regard to the affair in 1904, and also spoke with Petra, Alfonsa, and another
whose name he does not recollect, and that, when he asked Alfonsa who had burnt her
feet, she at first said that she did not know, but when he insisted on her telling him
she replied that Feliciano's children had done it. On being asked if he knew of the
http://lawyerly.ph/juris/view/c75b 7/16
9/27/2018 US v. FELICIANO DIVINO

crime in June, 1903, he said no, that it had come to his knowledge in the month of
September, 1904; when asked whether, prior to the time that Feliciano told Governor
Bolton in the presence of the witness that he, Feliciano, had burnt Alfonsa's feet,
Feliciano had told him that another person had done it, lie answered yes, that his wife,
Maria, had burnt Alfonsa's feet; this statement was made to him at his office in the
month of December, 1904, the other one having been made to the governor in
October, 1905; and to the question "Why did he tell you this? he replied:
"When Alfonsa came to the office for the first time, she was very frightened, and
we could hardly get anything from her; we relied upon Feliciano's word as to who
was the guilty party; the girl was small and sickly and we could not obtain any
information from her. When she was removed from the hands of Feliciano and
turned over to another family that was not related to him, and when she found
out that she would not have to return to him, it happened one day that I was at
the balcony of the office and saw her coming up the street; when she had nearly
reached the road, Feliciano Divino was coming out of Auat's store, directly in her
road; she turned round at once and ran to the stairs of the office, and hid herself
behind Segundo Esperat; as the result of a conversation that I had with her, on
said occasion I spoke to Feliciano and he then confessed his guilt; Feliciano told
me that Maria had burnt Alfonsa's feet at a time when he was absent from his
house; he did not say when, and said nothing more."

The cross-examination was of the following tenor:


"Q. After Alfonsa reported the matter to the government, did she return to
Feliciano's house? A. So far as I know, she did not; the Government placed the
girl in charge of Esperat.

"Q. Do you remember the date on which the girl came to the government
building? A. I can not name the day, but only the month.

"Q. What month was it? A. December, 1904, toward the end of the month,"

By the court :

http://lawyerly.ph/juris/view/c75b 8/16
9/27/2018 US v. FELICIANO DIVINO

"Q. When Alfonsa came to report the matter, to whom did she report? A. To the
governor.

"Q. Were you present when she reported it to the governor? A, I acted as
interpreter.

"Q. What was Alfonsa's reason for reporting it ? A. She wanted to leave
Feliciano's house.

"Q. Who were present when she reported the matter? A. Governor Bolton and
myself.

"Q. Was anybody with her? A. A boy and a girl; this was the occasion on which
she stated that Feliciano's daughters had burnt her.

"Q. Was Feliciano present? A. No, sir.

"Q. Tell the court as fully as you can remember everything that Alfonsa stated on
said occasion.-A. She said hardly anything; it was her friend Quirina who said the
most.

"Q. What did Quirina say? A. Quirina complained of the treatment that she had
received in Feliciano's house, and asked that she be sent to some other.

"Q. What did she say with regard to the burns on Alfonsa's feet? A. She said that
she did not witness the burning and that she did not know who did it.

"Q. Was Alfonsa questioned on the matter? A. Yes.

"Q. Can you state more fully what she said? A. I think not."

Clara Divino, 16 years of age, a witness for the defense, testified: that when Alfonsa
went to their house she had several sores on her face and feet, and a bruise on her
ankle; her father wanted to apply some medicines to them but she took no heed; that
one day her father said: "Let us cure her with herbs;" the treatment took a long time,
and as she would not remain quiet, her father ordered her to stay in the house in order
to cure her the better, but she always went out, and her father then called her and put
http://lawyerly.ph/juris/view/c75b 9/16
9/27/2018 US v. FELICIANO DIVINO

petroleum on her feet; this proved very effective and cured her to some extent; her
father, in order to prevent her going out of the house locked her in the storeroom for
several days, and afterwards in the pantry upstairs, a room on one side of the kitchen
used by the servants; and that after Alfonsa ran away from the house, she saw her in
the streets; that no force was used in treating her; that her father held her while they
applied petroleum to her feet; she denied that she was ever bound or secured with a
stick" or laid on the floor, because she held her by the shoulders; that she was sitting
down 'with her feet stretched out; that her feet had been bandaged many times; that
her father was not angry on the occasion that petroleum was applied to Alfonsa's feet;
that a physician called at their house to attend to Alfonsa; that when Alfonsa came to
their house, her feet were sore and ulcerated.

And it was the fiscal who put the question "Whether at the time she had only a small
ulcer on her feet," to which she replied yes; that at that time they had previously
washed Alfonsa's feet with hot water, and that thereafter the petroleum was applied
and the feet bandaged.

Finally, Feliciano Divino, the accused, testified as follows:

http://lawyerly.ph/juris/view/c75b 10/16
9/27/2018 US v. FELICIANO DIVINO

"Captain Tomas sent the girl to me for treatment because she was suffering from
ulcers. As Captain Tomas insisted, I admitted her to my house. When we got to
my house I found out that she had a great many sores and I kept her there in
order to cure her. I took care of her and gave her food and clothing. Her malady
improved at times, but after two or three months reappeared. She had ulcers on
both feet and on the face. The sores on her face healed, but the ulcers on her feet
became worse until they finally extended to the sole of the foot. I ordered her to
treat the sore with petroleum, but she would not do it. After some time I had to
look after the ulcers personally. At times they improved, and at others became
worse. The nicer on the sole of her foot became larger. The other ulcers did not
entirely heal, the infection remained inside. The wounds on the instep and upper
part of the feet progressed fairly well, but those that she had on her soles did not,
because she always went out of the house and walked about. I continued to look
after and treat all the ulcers that appeared. As several years elapsed without the
ulcers becoming entirely cured, I decided to cure them with petroleum, but she
objected because she said it hurt her. As the ulcer had grown big and smelled
badly, I called her one evening to the, sola and examined it. When I found that it
had grown too large on both feet, I ordered some hot water and told my
daughters to hold the girl because she objected to having petroleum applied to
her feet. I ordered them to hold her while I washed the ulcers with hot water. I
then poured petroleum over her feet and bandaged them. Fearing that she would
go out of the house and again walk in the dirt, I put her in the storeroom. After a
few days I ordered her upstairs and locked her in the pantry where the servants
slept."

When questioned as to where the servants went with Alfonsa, he said that he came to
know of it because the governor had sent him word and told him that his servant girl
accused him of burning her feet, but he denied it and explained the truth of the
matter, of how he had tried to cure her feet; the governor told him to go back to his
house, and that he would investigate the affair; he afterwards ordered him to the
town, and when he reached it, Mr. Wood alone was there; Mr. Wood told him that the
best thing that he could do was to settle the matter as soon as possible. The court then
asked:

http://lawyerly.ph/juris/view/c75b 11/16
9/27/2018 US v. FELICIANO DIVINO

"Was this the same conversation as to which Mr. Wood testified? A. I did not
understand what Mr. Wood said last night, but I will only say what took place.
When I asked him what kind of a settlement he wished, he suggests to me that I
support Alfonsa for four years at the rate of 5 pesos a month. He made a written
agreement with me, Inasmuch as this girl had rendered me good service, I had
no objection to allowing "her 5 pesos a month. He asked me to sign the paper,
telling me that the agreement was that I was to pay Alfonsa 5 pesos a month for a
period of four years. I did not read the paper because I had great confidence in
Mr. Wood. Under said agreement I have been paying for two years and three
months.

"Q. In what condition were the feet of the girl when she first entered your house?
A. When she came to my house her feet were somewhat deformed, the toes were
twisted, and there was an ulcer on her ankle."

Tomas Monteverde, the Captain Tomas to whom the accused refers, testified that he
had twice been gobernadorcillo, and twice justice of the peace; that one day as he was
going beyond Talomo, where the accused lived, in order to examine a corpse, he saw
Alfonsa on the road in very bad condition; she was covered from the face to her feet
with ulcers called ibung, and which smelled offensively; he gave her to Feliciano to be
cured; this was in 1898, when he still was justice of the peace in the time of the
Spanish Government; subsequently, in answer to questions put by the-court, he said
that, after the girl was delivered to Feliciano, he saw her almost every month because
when going to the pueblo they called at his house; on making him describe the ulcers
and scars that he had seen, he said that the whole of the instep was red in color and
denuded of skin, and that she had ulcers in the sole of her foot, a scar above the left
ankle, and several scars on her face.
"In view of the admissions of the accused" says the trial judge "in view of the
present condition of the feet of the injured party, which positively proves that the
scars which appear on them are the result of burns, and in view of the lack of any
explanation on the part of the defense as to the manner in which said burns were
produced, it limiting itself to showing that they are the result of ulcers, the court
has no doubt that Alfonsa and Petra told the truth in everything of importance."

And considering that the accused was guilty of the crime of lesiones graves, defined
and punished by article 416, paragraph 3, of the Penal Code, with the aggravating
http://lawyerly.ph/juris/view/c75b 12/16
9/27/2018 US v. FELICIANO DIVINO

circumstances 1 and 2 of article 10 of the said code, without any mitigating


circumstance, the court sentenced him to the penalties stated in the beginning.

The testimony of Orville Wood, who at that time was secretary to the military
governor of said district, was not impugned or discredited in any way and far from
being ignored in the examination of these proceedings, should command due
attention as being the testimony that furnished the data for the proper judgment of
facts that four years later were put forward as constituting a crime, without there
appearing in the proceedings any reason or cause whereby a poor helpless girl, after
living five or six years in the house of the accused, should have been injured by the
latter in so cruel a manner as described. If Alfonsa spoke the truth, one month and
three weeks after she was tortured she was on her way to the government building,
and on seeing the accused in the road she "ran to the stairs of the office and hid
herself behind Segundo Esperat." She was accompanied by one Quirina, and Alfonsa
"said hardly anything, it was her friend Quirina who said the most," and Quirina only
complained of the treatment that she had received in Feliciano's house, and requested
that she be sent elsewhere. And as Governor Bolton was aware of the circumstance,
had it partaken of the character of a crime, it can not be assumed, because nothing
induces such a presumption, that he would have let it pass without causing it to be
prosecuted and punished.

That petroleum was forcibly applied to the feet of Alf onsa, there can be no doubt; but
that besides the action of the oil, fire was applied, and above all, that said application
of lire was a mere stroke of cruelty, and that the torture was kept up for an hour and a
half, or the time required to smoke two cigarettes, or one cigarette, when the
testimony even regarding the manner in which said coercion was effected was so
contradictory, a point which was m important, for the subjection of the tortured girl or
the patient to whom the cure was applied, is a thing that can not be conclusively
established; and even if, by means of circumstantial evidence, the burns were actually
proven, it can not be established in a conclusive manner that the injury was caused
maliciously.

This must have been the consideration which induced the secretary, who, as an
honorable man, must have been indignant at the cruel injuries which the prosecution
has attempted to exaggerate at the trial, to limit his action to obtaining from the
accused a written obligation allowing Alfonsa a monthly pension of five pesos for her
subsistence. This was confirmed by the accused, and has in no manner been

http://lawyerly.ph/juris/view/c75b 13/16
9/27/2018 US v. FELICIANO DIVINO

contradicted in the proceedings, although the investigations to establish the


criminality of the deed were most searching;

The expert testimony offered by the prosecution should be carefully noted, as should
also the opinion of the lower court in connection therewith contained in its judgment.
The said witness states that he rendered assistance to Alfonsa from the 29th of
December, 1905, to the 16th of December, 1906 the burns are supposed to have been
caused two years previously on account of a large ulcer that she had on the left foot, in
a place that showed an old scar; according to the court's remark on folio 109, said left
foot was the most deformed:
"It was a bad ulcer" says the expert "that extended over the instep under the
ankle, passing to the middle of the sole; it was. two and a half inches wide, and it
lacked two inches of surrounding the foot.

"The soles of both feet are deformed by reason of protuberances of what appears
to be callous matter."

The witness continues his explanation of the prolonged treatment of the said ulcer,
and ends thus :
"After the new soft tissue was formed level with the skin, in order to avoid an
excessive contraction, I cut some pieces of the girls' skin and placed them over
the wound. I did this several times before effecting a complete cure. I presented
my bill for seven hundred and sixty-six pesos (766)." (Folios 145 and 148.)

The following rulings are contained in the latter part of the judgment:
"No damages are allowed as no proof has been offered whereon the court may
base the amount thereof. The court considers that the prejudice caused to the
injured party by an ulcer on one of the feet that was cured by Dr. Ames was not
directly occasioned by the accused." (Folio 186.)

On cross-examination:

http://lawyerly.ph/juris/view/c75b 14/16
9/27/2018 US v. FELICIANO DIVINO

"Q. Did you notice that Alfonsa had scars all over her body? A. She has numerous
scars.

"Q. If a person placed his hand in the middle of a flame, woulcl his hand become
charred? A. Certainly, all the soft parts would be charred.

"Q. By looking at a scar, how can you determine that it is due to a burn and not to
impurities of the blood? A. The scar of a burn is not always characteristic. It may
resemble other scars, but in general, scars resulting from burns are superficial,
and sometimes cover a large space Other causes which destroy the skin to a large
extent may produce the same kind of scar.

"Q. Have you noticed that non-Christian Bagobos have weak constitutions, and
that, as a rule, their skin is covered with eruptions? A. They show many scars and
many eruptions, and their constitutions are weak when they are not well fed.

"Q. Have you noticed that these wounds have become worse by reason of the
herbs they apply to cure them? A. Undoubtedly, the wounds became worse on
account of their efforts to cure them.

"Q. With reference to Alfonsa's wounds, is it not possible that the contraction
observed in the scars was caused by the lack of proper treatment? A. The
contraction in a wound depends upon the extent of the tissue embraced by the
scar, and this depends on the size of the original wound which may become
larger owing to lack of proper treatment." (Folios 152 and 153.)

Granting among the admissions made by the accused, that he continued the treatment
of the ulcers of the girl until he or his daughters burned her, or that the action of the
petroleum irritated the said ulcers and caused, them to spread, as may be judged from
the extent of the scars, it is certain that the acts of the guilty person do not seem to
have been intended to cause an evil, but rather as a remedy; however, taking into
account the imprudence defined in paragraph 2 of article 568 of the Penal Code, as
having been committed by an ignorant person who was prohibited from exercising the
art of healing not only by the regulations governing it but also by the Penal Code, the
penalty prescribed by the paragraph above referred to, that is, arresto, must therefore
be applied in its medium and maximum degrees.

http://lawyerly.ph/juris/view/c75b 15/16
9/27/2018 US v. FELICIANO DIVINO

In view of the foregoing, the judgment appealed from is hereby reversed, and it is our
opinion that, in accordance with the provisions of paragraph 3 of article 568,of the
Penal Code, Feliciano Divino should be, and he is hereby, sentenced for simple
imprudence to the penalty of four months of arresto mayor, to suspension from office
and right of suffrage during the period of his sentence, and to pay the costs of both
instances. So ordered.

Torres, Mapa, Carson, Willard, and Tracey, JJ. concur.

http://lawyerly.ph/juris/view/c75b 16/16
9/27/2018 US v. VALERIO MENDIETA

[ GR No. 11000, Mar 14, 1916 ]

US v. VALERIO MENDIETA

DECISION
34 Phil. 242

JOHNSON, J.:
This defendant was charged with the crime of assassination. The complaint alleged:
"That the said accused Valerio Mendieta, on or about the 22d of February, 1914,
in the municipality of Cauayan, Isabela, did, willfully, unlawfully, treacherously
and criminally, assault Pedro Acierto with a lance, thereby causing him a serious
wound in the left side, as a result of which the said Pedro Acierto died. An act
committed with violation of law."

The defendant was first arrested, taken before a justice of the peace and given a
preliminary examination, at the close of which the justice of the peace found from the
evidence that there was probable cause for believing that the defendant was guilty of
the crime charged and held him for trial in the Court of First Instance.
Upon the above complaint the defendant was brought to trial in the Court of First
Instance of the Province of Isabela; he was duly arraigned, pleaded not guilty, was
tried, found guilty of the crime of assassination, with the qualifying circumstance of
treachery, with the mitigating circumstance of having executed the crime in
vindication of an offense committed against him by one Hilario Lauigan, and was
sentenced to be imprisoned for a period of seventeen years four months and one day
of cadena temporal, with the accessory penalty provided for in article 56 of the Penal
Code, to indemnify the heirs of the deceased in the sum of P1,000, and to pay the
costs. From that sentence the defendant appealed to this court The only question
presented by the appellant is one of fact. The appellant, through his attorney de
officio, attempts to show that the evidence adduced during the trial of the cause was
not sufficient to show, beyond a reasonable doubt, that he was guilty of the crime
charged.

http://lawyerly.ph/juris/view/cab3 1/3
9/27/2018 US v. VALERIO MENDIETA

The Attorney-General, in a very interesting and carefully prepared brief, reached the
conclusion that the defendant was guilty of the crime charged in the complaint, with
the qualifying circumstance of treachery, without any mitigating circumstances, and
recommended that the decision of the lower court be modified, and that he be
sentenced with the penalty of cadena perpetua, with the accessory penalties provided
for by law, to indemnify the heirs of the deceased in the sum of P1,000 and to pay the
costs.
From an examination of the record we find certain facts which stand undisputed:

First. That on the 22d day of February, 1914, the defendant, the deceased Pedro
Acierto, Hilario Lauigan, together with many others, were in a cockpit in the
barrio of Barringin, municipality of Cauayan, Province of lsabela.
Second. That while said parties were in said cockpit a quarrel arose concerning a
bet made on certain fighting roosters between a number of persons present,
especially between the defendant Valerio Mendieta and Hilario Lauigan. The
proof does not show positively that the deceased, Pedro Acierto, was in any way
whatever connected with said quarrel.
Third. That some time after said quarrel took place in the cockpit, Pedro Acierto,
together with others, left the cockpit for the purpose of returning to their
respective homes; that soon after Pedro Acierto and his companions had left the
cockpit and while they were yet within a few yards of the cockpit, the defendant,
Valerio Mendieta, rushed up behind him and stabbed him in the back with a
lance, which lance penetrated his body and entered his intestines, as a result of
which wound Pedro Acierto died on the 17th of March, 1914.

The defendant makes a feeble effort to show that the wound which he caused to Pedro
Acierto was caused in defending himself. He also attempts to show that the wound
which he inflicted upon Pedro Acierto was intended for Hilario Lauigan.
The first contention of the defendant, that he injured Pedro Acierto in self-defense, in
our opinion, is not supported by the record. Two or three witnesses were present and
saw him inflict the wound upon Pedro Acierto. No offense had been offered by Pedro
Acierto to the defendant, neither did he offer any resistance to the attack of the
defendant upon him. In fact the record shows that Pedro Acierto did not know that he
was being pursued by the defendant at the time the mortal wound was inflicted. Even
admitting that the defendant intended to injure Hilario Lauigan instead of Pedro
Acierto, even that, in view of the mortal wound which he inflicted upon the latter, in
http://lawyerly.ph/juris/view/cab3 2/3
9/27/2018 US v. VALERIO MENDIETA

no way could be considered as a relief from his criminal act. That he made a mistake
in killing one man instead of another, when it is proved that he acted maliciously and
willfully, cannot relieve him from criminal responsibility. Neither do we believe that
the fact that he made a mistake in killing the wrong man should be considered as a
mitigating circumstance. We are therefore of the opinion that the recommendation of
the Attorney-General should be followed.
After a careful examination of the record, we are of the opinion that the record shows
beyond a reasonable doubt that the defendant is guilty of the crime charged, with the
qualifying circumstances of treachery and that there were no mitigating circumstances
attending the commission of the crime. For that reason the judgment of the lower
court should be modified and the defendant should be sentenced to be imprisoned
with the penalty of cadena perpetua, with the accessory penalties provided for by law,
to indemnify the heirs of the deceased in the sum of P1,000 and to pay the costs. So
ordered.
Torres, Moreland, Trent, and Araullo, JJ., concur.

http://lawyerly.ph/juris/view/cab3 3/3
9/27/2018 US v. ANASTASIO MAISA

[ GR No. 3728, Sep 25, 1907 ]

US v. ANASTASIO MAISA

DECISION
8 Phil. 597

ARELLANO, C.J.:
It was proven in this case that while Anastasia Maisa and Jose Machón were engaged
in a fight, Isaac Monrayo tried to separate them and gave Maisa a push which caused
the latter to fall to the ground, and on getting up Maisa struck Monrayo in the face,
hitting him in the right eye, which became completely disabled. The accused alleged
that the blow was aimed at Machón, and not at Monrayo. Although the wrongful act
be committed against a person other than the one whom it was intended to injure, this
fact does not excuse the offender from criminal, liability for the voluntary commission
of a wrongful act or misdemeanor, according to paragraph 3 of article 1 of the Penal
Code.

Therefore, the judgment appealed from, whereby the accused is sentenced to two
years four months and one day of prisión correccional, and to pay Isaac Monrayo an
indemnity of 50 pesos or to suffer subsidiary imprisonment in case of insolvency, is
hereby affirmed. And he is further sentenced to pay the costs of both instances. So
ordered.

Torres, Johnson, Willard, and Tracey, JJ., concur.

http://lawyerly.ph/juris/view/ce22b 1/1
9/27/2018 G.R. No. L-1896

Today is Thursday, September 27, 2018

Custom Search

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-1896 February 16, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
RAFAEL BALMORES Y CAYA, defendant-appellant.

Felixberto B. Viray for appellant.


Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Adolfo Brillantes for appellee.

OZAETA, J.:

Appellant, waiving the right to be assisted by counsel, pleaded guilty to the following information filed against him in
the Court of First Instance of Manila:

The undersigned accuses Rafael Balmores y Caya of attempted estafa through falsification of a security,
committed as follows:

That on or about the 22nd day of September, 1947, in the City of Manila, Philippines, the said accused did
then and there wilfully, unlawfully and feloniously commence the commission of the crime of estafa through
falsification of a security directly by overt acts, to wit; by then and there tearing off at the bottom in a cross-
wise direction a portion of a genuine 1/8 unit Philippine Charity Sweepstakes ticket thereby removing the true
and real unidentified number of same and substituting and writing in ink at the bottom on the left side of said
ticket the figure or number 074000 thus making the said ticket bear the said number 074000, which is a prize-
winning number in the Philippine Charity Sweepstakes draw last June 29, 1947, and presenting the said ticket
so falsified on said date, September 22, 1947, in the Philippine Charity Sweepstakes Office for the purpose of
exchanging the same for the corresponding cash that said number has won, fraudulently pretending in said
office that the said 1/8 unit of a Philippine Charity Sweepstakes ticket is genuine and that he is entitled to the
corresponding amount of P359.55 so won by said ticket in the Philippine Charity Sweepstakes draw on said
date, June 29, 1947, but the said accused failed to perform all the acts of execution which would have
produce the crime of estafa through falsification of a security as a consequence by reason of some causes
other than this spontaneous desistance, to wit: one Bayani Miller, an employee to whom the said accused
presented said ticket in the Philippine Charity Sweepstakes Office discovered that the said ticket as presented
by the said accused was falsified and immediately thereafter he called for a policeman who apprehended and
arrested the said accused right then and there.

Contrary to law.

(Sgd.) LORENZO RELOVA


Assistant City Fiscal

and was sentenced by Judge Emilio Pena to suffer not less than 10 years and 1 day of prision mayor and not more
than 12 years and 1 day of reclusion temporal, and to pay a fine of P100 and the costs.

From that sentence he appealed to this court, contending (1) that the facts and (2) that the trial court lacked
jurisdiction to convict him on a plea of guilty because, being illiterate, he was not assisted by counsel.

In support of the first contention, counsel for the appellant argues that there could be so could be no genuine 1/8
unit Philippine Charity Sweepstakes ticket for the June 29, 1947, draw; that this court has judicial notice that the
Philippine Charity Sweepstakes Office issued only four 1/4 units for each ticket for the said draw of June 29, 1947;
that the information does not show that the true and real unidentified number of the ticket alleged to have been torn
was not and could not be 074000; that the substitution and writing in ink of the said number 074000 was not
falsification where the true and real number of the ticket so torn was 074000.

This contention is based on assumption not borne out by the record. The ticket alleged to have been falsified is
before us and it appears to be a 1/8 unit. We cannot take judicial notice of what is not of common knowledge. If
relevant, should have been proved. But if it is true that the Philippine Charity Sweepstakes Office did not issue 1/8
but only 1/4 units of tickets for the June 29, 1947, draw, that would only strengthen the theory of the prosecution that
the 1/8 unit of a ticket which appellant presented to the Philippine Charity Sweepstakes Office was spurious. The
assumption that the true and real unidentified number of the ticket alleged to have been torn was the winning
number 074000, is likewise not supported by the record. The information to which appellant pleaded guilty alleged
that the appellant removed the true and real unidentified number of the ticket and substituted and wrote in ink at the
bottom on the left side of said ticket the figure or number 074000. It is obvious that there would have been no need
of removal and substitution if the original number on the ticket was the same as that which appellant wrote in ink in
lieu thereof.

The second contention appears to be based on a correct premises but wrong conclusion. The fact that appellant
was illiterate did not deprive the trial court of jurisdiction assisted by counsel. The decision expressly states that
appellant waived the right to be assisted by counsel, and we know of no law against such waiver.

It may be that appellant was either reckless or foolish in believing that a falsification as patent as that which he
admitted to have perpetrated would succeed; but the recklessness and clumsiness of the falsification did not make
the crime impossible within the purview of paragraph 2, article 4, in relation to article 59, of the Revised Penal Code.
Examples of an impossible crime, which formerly was not punishable but is now under article 59 of the Revised
Penal Code, are the following: (1) When one tries to kill another by putting in his soup a substance which he

https://www.lawphil.net/judjuris/juri1950/feb1950/gr_l-1896_1950.html 1/2
9/27/2018 G.R. No. L-1896
believes to be arsenic when in fact it is common salt; and (2) when one tries to murder a corpse. (Guevara,
Commentaries on the Revised Penal Code, 4th ed., page 15; decision, Supreme Court of Spain, November 26,
1879; 12 Jur. Crim., 343.) Judging from the appearance of the falsified ticket in question, we are not prepared to say
that it would have been impossible for the appellant to consummate the crime of estafa thru falsification of said ticket
if the clerk to whom it was presented for the payment had not exercised due care.

The penalty imposed by article 166 for the forging or falsification of "treasury or bank notes or certificates or other
obligations and securities" is reclusion temporal in its minimum period and a fine not to exceed P10,000, if the
document which has been falsified, counterfeited, or altered is an obligation or security of the United States or of the
Philippine Islands. This being a complex crime of attempted estafa through falsification of an obligation or security of
the Philippines, the penalty should be imposed in its maximum period in accordance with article 48. Taking into
consideration the mitigating circumstance of lack of instruction, and applying the Indeterminate Sentence Law, the
minimum cannot be lower than prision mayor in its maximum period, which is 10 years and 1 day to 12 years. It
results, therefore, that the penalty imposed by the trial court is correct.

The alteration, or even destruction, of a losing sweepstakes ticket could cause no harm to anyone and would not
constitute a crime were it not for the attempt to cash the ticket so altered as a prize-winning number. So in the
ultimate analysis appellant's real offense was the attempt to commit estafa (punishable with eleven days of arresto
menor); but technically and legally he has to suffer for the serious crime of falsification of a government obligation.
We realize that the penalty is too severe, considering all the circumstances of the case, but we have no discretion to
impose a lower penalty than authorized by law. The exercise of clemency and not in this court.

We are constrained to affirm the sentence appealed from, with costs against the appellant.

Moran, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes and Torres, JJ., concur.

Separate Opinions

PARAS, J., dissenting:

The accused-appellant, instead of being the victimizer, had become the victim. He was accused of having falsified a
genuine 1/8 unit of the Philippine Charity Sweepstakes ticket for the June, 1947, draw by tearing off at its bottom in
a cross-wise direction a portion, thereby removing the true and unidentified number of said ticket and substituting
and writing in ink at the bottom on the left side the number 074000, thus making said ticket bear a prize-winning
number. He was convicted of attempted estafa thru falsification of an obligation or security and sentenced to an
indeterminate penalty of from 10 years and 1 day of prision mayor 12 years and 1 day of reclusion temporal, and to
pay a fine of P100 plus the costs. He waived the right to be assisted by counsel and merely pleaded guilty to the
information.

The appellant is admittedly an illiterate and, in my opinion, had committed only an impossible crime now punishable
under paragraph 2, article 4, in relation to article 59, of the Revised Penal Code. I say impossible, because in the
way the alleged falsification was done, it was inherently inadequate or ineffective and according certain to be
detected. Stated otherwise, the appellant could not have succeeded in cashing the ticket. Flor who would cash a
ticket which, in the first place, has a missing portion and, in the second place, contains a number written in ink. Not
even boy agents who conduct their trades on street sidewalks, and much less the employee of the Sweepstakes
Office to whom it was presented. As a matter of fact, the falsification was readily detected by said employee. The
crime is just as impossible as passing a counterfeit paper bill concocted in regular newsprint and in ordinary
handwriting.

A doubt also arises from the fact that the ticket is a 1/8 unit, in the face of the contention of attorney for appellant in
this instance that the tickets for the June, 1947, Sweepstakes draw consisted of only four units. Of course, this may
not be a matter of judicial notice, but the point remains that if appellant was assisted by competent counsel in the
trial court, the fact might have been duly proven. It is true that the appellant waived his right to be assisted by
counsel, but we cannot help pointing out that a miscarriage of justice may sometime result by force of
circumstances. In such cases, any capital doubt should be resolved in favor of the accused.

My vote, therefore, is to reverse the appealed judgment and to release the appellant immediately as he has been in
prison since November 11, 1947.

The Lawphil Project - Arellano Law Foundation

https://www.lawphil.net/judjuris/juri1950/feb1950/gr_l-1896_1950.html 2/2
9/27/2018 G.R. No. L-36173

Today is Thursday, September 27, 2018

Custom Search

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-36173 November 25, 1932

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
MARIA ORIFON, defendant-appellant.

Quintin Paredes for appellant.


Attorney-General Jaranilla for appellee.

BUTTE, J.:

Maria Orifon was sentenced to cadena perpetua for the murder of her father. She pleaded guilty to the charge at the
preliminary investigation but on the arraignment upon the information filed in the Court of First Instance she pleaded
not guilty. The principal evidence against the accused consisted of her confession which she wrote out in her own
handwriting and in her own dialect (Ilocano). It appears in the record in Spanish as follows:

Yo, Maria Orifon, que firmo al pie de estas mis declaraciones, soltera, de 24 años de edad y
residente en el lugar llamado Sagpatan del Municipio de Dingras, Ilocos Norte, declaro la pura
verdad en los siguientes parrafos y no declaro nada que no sea verdad y solo declarare lo que
realmente occurrio y he hecho.

Si no me equivoco, recuerdo que el 2.º año atras o sea el ano 1930 sin recordar el mes, en una
noche en que yo estaba durmiendo, aquel mi difunto padre Lazaro Orifon, sin mas ni mas, note
que el estaba encima de mi y, a pesar de mi resistencia, pudo fornicarme violandome, pues
decia que si yo iba a gritar o si yo iba a dar cuenta de aquello a mi madre que era su esposa,
me mataria o mataria a nosotras dos de mi madre. Cuando mi padre hizo aquello que hizo de
mi, no estaba enonces mi madre en nuestra casa porque se habia ido entonces a Laoag. Y
desde aquella ocasion en que tuvo acceso carnal conmigo, ya no podia mas negar a mi padre el
gusto de gozar de mi porque le tenia miedo. La ultima vez que yacio conmigo mi padre, fue la
noche del miercoles anterior a su muerte. Yo no he estado premeditando el hecho de dar muerte
a mi padre. Pero en vista de que ahora ya pronto se va a notar alguna senal de lo que ha estado
haciendo de mi y parece que no puedo estar en frente y ver a mi madre y la gente por la
verguenza que tengo; por eso se me ocurrido la mala intencion y pense en hacer lo que hice de
mi padre lo cual voy ahora a relatar.

En la noche del jueves, no se a que hora, fecha 2 del mes de julio de 1931, mientras esteban
durmiendo mi madre, mis hermanos y un primo de segundo grado llamado Alfredo Ballesteros,
me baje de casa y me fui al lugar llamado Santisima donde se encontraba entonces mi difunto
padre; pues alli pasaba el mayor tiempo de los dias de trasplante de palay. Y en aquella ocasion
en que me fui a aquel lugar fue cuando yo mate a mi padre. Y lo primero que hice, una vez
dentro de nuestra cobacha, encendi una cerilla del fosforo que llevaba y entonces vi que mi
padre estaba durmiendo. Y al momento de alumbrarle, vi que el bolo de mi padre estaba en la
banguera envainado. Recogi y desenvaine el bolo y con el mismo le di un tajo en el lado
izquierdo de su cuello y tambien en el lado izquierdo de su abdomen dandole a mi padre
entonces dos tajos. Aunque asi he hecho contra mi padre, desde un principio tengo el proposito
de decir la verdad. Inmediatamente despues de haber dado los tajos a mi padre me retire a casa
llavandome el bolo de mi padre, pero deje la vaina. Y al llegar yo a casa guarde en seguida para
ocultar el bolo en los bajos de una mata de cana al norte de nuestra casa; despues me fui ya a
dormir; y que desde entonces hasta ahora a nadie he revelado todo esto mas que ahora ante el
Sr. Teniente Chavez de la Constabularia y companeros bajo una buena investigacion que me
hicieron sin que hayan hecho nada contra mi, hoy 13 de julio de 1931.

At the trial no objection was made by her counsel to the admission of said confession. We find, moreover, sufficient
corroboratory evidence, independent of said confession, to warrant its admission against the defendant. Her
counsel, on the appeal in this court, makes only the technical objection against said confession that this court
cannot take notice of said confession because it is written in dialect and the Spanish translation thereof appearing in
the record is not identified or in any wise certified. A member of this court, who has personal knowledge of the
Ilocano dialect, has assured us that the Spanish translation of said confession as above set out is substantially
correct and we accept the same under these circumstances. (Cf. Dionisio vs. Dionisio, 45 Phil., 609, 611.) No
question is raised on this appeal as to said confession being the free and voluntary act and declaration of the
accused.

In view of the fact that the penalty of cadena perpetua no longer exists under the Revised Penal Code, the sentence
must be modified to reclusion perpetua with the accessory penalties provided by law.

In view of the horrible wrong which this young woman suffered at the hands of her father and of the obviously
depressed state of mind and body which she must have suffered when she premeditated the act of madness and
revenge for which she is now condemned under the letter of the law to suffer life imprisonment, the court, invoking
the provisions of article 5, second paragraph, of the Revised Penal Code, submits to the Chief Executive through
the Department of Justice, its sincere opinion that the penalty imposed in this case (and the law does not permit any
lower penalty) is a clearly excessive penalty, having regard to the condition of the accused and the circumstances
which impelled her to commit the crime for which she stands convicted. lawphil.net

https://www.lawphil.net/judjuris/juri1932/nov1932/gr_l-36173_1932.html 1/2
9/27/2018 G.R. No. L-36173
With profound regret that the law allows us no alternative, we affirm the judgment of the court below as modified
herein. So ordered.

Avanceña, C.J., Villamor, Ostrand, Villa-Real, Abad Santos, Hull, Vickers and Imperial, JJ., concur.

Separate Opinions

STREET, J., concurring:

I concur with the court in this case and wish to add that, in my opinion, the appellant should be pardoned in full.

Malcolm, J., vote to affirm the judgment as modified.

The Lawphil Project - Arellano Law Foundation

https://www.lawphil.net/judjuris/juri1932/nov1932/gr_l-36173_1932.html 2/2
9/27/2018 G.R. No. L-43530

Today is Thursday, September 27, 2018

Custom Search

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-43530 August 3, 1935

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
AURELIO LAMAHANG, defendant-appellant.

Honesto K. Bausa for appellant.


Office of the Solicitor-General Hilado for appellee.

RECTO, J.:

The defendant Aurelio Lamahang is before this court on appeal from a decision of the Court of First Instance of
Iloilo, finding him guilty of attempted robbery and sentencing him to suffer two years and four months of prision
correccional and to an additional penalty of ten years and one day of prision mayor for being an habitual delinquent,
with the accessory penalties of the law, and to pay the costs of the proceeding.

At early dawn on March 2, 1935, policeman Jose Tomambing, who was patrolling his beat on Delgado and C.R.
Fuentes streets of the City of Iloilo, caught the accused in the act of making an opening with an iron bar on the wall
of a store of cheap goods located on the last named street. At that time the owner of the store, Tan Yu, was sleeping
inside with another Chinaman. The accused had only succeeded in breaking one board and in unfastening another
from the wall, when the policeman showed up, who instantly arrested him and placed him under custody.

The fact above stated was considered and declared unanimously by the provincial fiscal of Iloilo, the trial judge and
the Solicitor-General, as constituting attempted robbery, which we think is erroneous.

It is our opinion that the attempt to commit an offense which the Penal Code punishes is that which has a logical
relation to a particular, concrete offense; that, which is the beginning of the execution of the offense by overt acts of
the perpetrator, leading directly to its realization and consummation. The attempt to commit an indeterminate
offense, inasmuch as its nature in relation to its objective is ambiguous, is not a juridical fact from the standpoint of
the Penal Code. There is no doubt that in the case at bar it was the intention of the accused to enter Tan Yu's store
by means of violence, passing through the opening which he had started to make on the wall, in order to commit an
offense which, due to the timely arrival of policeman Tomambing, did not develop beyond the first steps of its
execution. But it is not sufficient, for the purpose of imposing penal sanction, that an act objectively performed
constitute a mere beginning of execution; it is necessary to establish its unavoidable connection, like the logical and
natural relation of the cause and its effect, with the deed which, upon its consummation, will develop into one of the
offenses defined and punished by the Code; it is necessary to prove that said beginning of execution, if carried to its
complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary
desistance of the perpetrator, will logically and necessarily ripen into a concrete offense. Thus, in case of robbery, in
order that the simple act of entering by means of force or violence another person's dwelling may be considered an
attempt to commit this offense, it must be shown that the offender clearly intended to take possession, for the
purpose of gain, of some personal property belonging to another. In the instant case, there is nothing in the record
from which such purpose of the accused may reasonably be inferred. From the fact established and stated in the
decision, that the accused on the day in question was making an opening by means of an iron bar on the wall of Tan
Yu's store, it may only be inferred as a logical conclusion that his evident intention was to enter by means of force
said store against the will of its owner. That his final objective, once he succeeded in entering the store, was to rob,
to cause physical injury to the inmates, or to commit any other offense, there is nothing in the record to justify a
concrete finding.1avvphil.ñet

It must be borne in mind (I Groizard, p. 99) that in offenses not consummated, as the material damage is
wanting, the nature of the action intended (accion fin) cannot exactly be ascertained, but the same must be
inferred from the nature of the acts executed (accion medio). Hence, the necessity that these acts be such
that by their very nature, by the facts to which they are related, by the circumstances of the persons
performing the same, and by the things connected therewith, they must show without any doubt, that they are
aimed at the consummation of a crime. Acts susceptible of double interpretation , that is, in favor as well as
against the culprit, and which show an innocent as well as a punishable act, must not and can not furnish
grounds by themselves for attempted nor frustrated crimes. The relation existing between the facts submitted
for appreciation and the offense which said facts are supposed to produce must be direct; the intention must
be ascertained from the facts and therefore it is necessary, in order to avoid regrettable instances of injustice,
that the mind be able to directly infer from them the intention of the perpetrator to cause a particular injury.
This must have been the intention of the legislator in requiring that in order for an attempt to exist, the
offender must commence the commission of the felony directly by overt acts, that is to say, that the acts
performed must be such that, without the intent to commit an offense, they would be meaningless.

Viada (Vol. I, p. 47) holds the same opinion when he says that "the overt acts leading to the commission of the
offense, are not punished except when they are aimed directly to its execution, and therefore they must have an
immediate and necessary relation to the offense."

Considering — says the Supreme Court of Spain in its decision of March 21, 1892 — that in order to declare
that such and such overt acts constitute an attempted offense it is necessary that their objective be known
and established, or that said acts be of such nature that they themselves should obviously disclose the
criminal objective necessarily intended, said objective and finality to serve as ground for the designation of
the offense: . . . .

In view of the foregoing, we are of the opinion, and so hold that the fact under consideration does not constitute
attempted robbery but attempted trespass to dwelling (People vs. Tayag and Morales, 59 Phil., 606, and decisions

https://www.lawphil.net/judjuris/juri1935/aug1935/gr_l-43530_1935.html 1/2
9/27/2018 G.R. No. L-43530
of the Supreme Court of Spain therein cited). Under article 280 of the Revised Penal Code, this offense is
committed when a private person shall enter the dwelling of another against the latter's will. The accused may be
convicted and sentenced for an attempt to commit this offense in accordance with the evidence and the following
allegation contained in the information: "... the accused armed with an iron bar forced the wall of said store by
breaking a board and unfastening another for the purpose of entering said store ... and that the accused did not
succeed in entering the store due to the presence of the policeman on beat Jose Tomambing, who upon hearing the
noise produced by the breaking of the wall, promptly approached the accused ... ." Under the circumstances of this
case the prohibition of the owner or inmate is presumed. (U.S. vs. Ostrea, 2 Phil., 93; U.S. vs. Silvano, 31 Phil., 509'
U.S. vs. Ticson, 25 Phil., 67; U.S. vs. Mesina, 21 Phil., 615; U.S. vs. Villanueva, 18 Phil., 215; U.S. vs. Panes, 25
Phil., 292.) Against the accused must be taken into consideration the aggravating circumstances of nighttime and
former convictions, — inasmuch as the record shows that several final judgments for robbery and theft have been
rendered against him — and in his favor, the mitigating circumstance of lack of instruction. The breaking of the wall
should not be taken into consideration as an aggravating circumstance inasmuch as this is the very fact which in this
case constitutes the offense of attempted trespass to dwelling.

The penalty provided by the Revised Penal Code for the consummated offense of trespass to dwelling, if committed
with force, is prision correccional in its medium and maximum periods and a fine not exceeding P1,000 (art. 280,
par. 2); therefore the penalty corresponding to attempted trespass to dwelling is to degrees lower (art. 51), or,
arresto mayor in its minimum and medium periods. Because of the presence of two aggravating circumstances and
one mitigating circumstance the penalty must be imposed in its maximum period. Pursuant to article 29 of the same
Code, the accused is not entitled to credit for one-half of his preventive imprisonment.

Wherefore, the sentence appealed from is revoked and the accused is hereby held guilty of attempted trespass to
dwelling, committed by means of force, with the aforesaid aggravating and mitigating circumstances and sentenced
to three months and one day of arresto mayor, with the accessory penalties thereof and to pay the costs.

Avanceña, C.J., Abad Santos, Hull, and Vickers, JJ., concur.

The Lawphil Project - Arellano Law Foundation

https://www.lawphil.net/judjuris/juri1935/aug1935/gr_l-43530_1935.html 2/2
9/27/2018 G.R. No. L-12155

Today is Thursday, September 27, 2018

Custom Search

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-12155 February 2, 1917

THE UNITED STATES, plaintiff-appellee,


vs.
PROTASIO EDUAVE, defendant-appellant.

Manuel Roxas for appellant.


Attorney-General Avanceña for appellee.

MORELAND, J.:

We believe that the accused is guilty of frustrated murder.

We are satisfied that there was an intent to kill in this case. A deadly weapon was used. The blow was directed
toward a vital part of the body. The aggressor stated his purpose to kill, thought he had killed, and threw the body
into the bushes. When he gave himself up he declared that he had killed the complainant.

There was alevosia to qualify the crime as murder if death had resulted. The accused rushed upon the girl suddenly
and struck her from behind, in part at least, with a sharp bolo, producing a frightful gash in the lumbar region and
slightly to the side eight and one-half inches long and two inches deep, severing all of the muscles and tissues of
that part.

The motive of the crime was that the accused was incensed at the girl for the reason that she had theretofore
charged him criminally before the local officials with having raped her and with being the cause of her pregnancy. He
was her mother's querido and was living with her as such at the time the crime here charged was committed.

That the accused is guilty of some crime is not denied. The only question is the precise crime of which he should be
convicted. It is contended, in the first place, that, if death has resulted, the crime would not have been murder but
homicide, and in the second place, that it is attempted and not frustrated homicide.

As to the first contention, we are of the opinion that the crime committed would have been murder if the girl had
been killed. It is qualified by the circumstance of alevosia, the accused making a sudden attack upon his victim from
the rear, or partly from the rear, and dealing her a terrible blow in the back and side with his bolo. Such an attack
necessitates the finding that it was made treacherously; and that being so the crime would have been qualified as
murder if death had resulted.

As to the second contention, we are of the opinion that the crime was frustrated and not attempted murder. Article 3
of the Penal Code defines a frustrated felony as follows:

A felony is frustrated when the offender performs all the acts of execution which should produce the felony as
a consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the
perpetrator.

An attempted felony is defined thus:

There is an attempt when the offender commences the commission of the felony directly by overt acts, and
does not perform all the acts of execution which constitute the felony by reason of some cause or accident
other than his own voluntarily desistance.

The crime cannot be attempted murder. This is clear from the fact that the defendant performed all of the acts which
should have resulted in the consummated crime and voluntarily desisted from further acts. A crime cannot be held to
be attempted unless the offender, after beginning the commission of the crime by overt acts, is prevented, against
his will, by some outside cause from performing all of the acts which should produce the crime. In other words, to be
an attempted crime the purpose of the offender must be thwarted by a foreign force or agency which intervenes and
compels him to stop prior to the moment when he has performed all of the acts which should produce the crime as a
consequence, which acts it is his intention to perform. If he has performed all of the acts which should result in the
consummation of the crime and voluntarily desists from proceeding further, it can not be an attempt. The essential
element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign
or extraneous cause or agency between the beginning of the commission of the crime and the moment when all of
the acts have been performed which should result in the consummated crime; while in the former there is such
intervention and the offender does not arrive at the point of performing all of the acts which should produce the
crime. He is stopped short of that point by some cause apart from his voluntary desistance.

To put it in another way, in case of an attempt the offender never passes the subjective phase of the offense. He is
interrupted and compelled to desist by the intervention of outside causes before the subjective phase is passed.

On the other hand, in case of frustrated crimes the subjective phase is completely passed. Subjectively the crime is
complete. Nothing interrupted the offender while he was passing through the subjective phase. The crime, however,
is not consummated by reason of the intervention of causes independent of the will of the offender. He did all that
was necessary to commit the crime. If the crime did not result as a consequence it was due to something beyond his
control.

The subjective phase is that portion of the acts constituting the crime included between the act which begins the
commission of the crime and the last act performed by the offender which, with the prior acts, should result in the
consummated crime. From that time forward the phase is objective. It may also be said to be that period occupied
by the acts of the offender over which he has control — that period between the point where he begins and the
https://www.lawphil.net/judjuris/juri1917/feb1917/gr_l-12155_1917.html 1/2
9/27/2018 G.R. No. L-12155
points where he voluntarily desists. If between these two points the offender is stopped by reason of any cause
outside of his own voluntary desistance, the subjective phase has not been passed and it is an attempt. If he is not
so stopped but continues until he performs the last act, it is frustrated.

That the case before us is frustrated is clear.

The penalty should have been thirteen years of cadena temporal there being neither aggravating nor mitigating
circumstance. As so modified, the judgment is affirmed with costs. So ordered.

Torres and Araullo, JJ., concur.


Carson and Trent, JJ., concur in the result.

The Lawphil Project - Arellano Law Foundation

https://www.lawphil.net/judjuris/juri1917/feb1917/gr_l-12155_1917.html 2/2
9/27/2018 G.R. No. 33463

Today is Thursday, September 27, 2018

Custom Search

Constitution Statutes Executive Issuances Judicial Issuances Other Issuances Jurisprudence International Legal Resources AUSL Exclusive

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 33463 December 18, 1930

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,


vs.
BASILIO BORINAGA, defendant-appellant.

Paulo Jaro for appellant.


Attorney-General Jaranilla for appellee.

MALCOM, J.:

Sometime prior to March 4, 1929, an American by the name of Harry H. Mooney, a resident of the municipality of
Calubian, Leyte, contracted with one Juan Lawaan for the construction of a fish corral. Basilio Borinaga was
associated with Lawaan in the construction of the corral. On the morning of March 4, 1929, Lawaan, with some of
his men, went to Mooney's shop and tried to collect from him the whole amount fixed by the contract,
notwithstanding that only about two-thirds of the fish corral had been finished. As was to be expected, Mooney
refused to pay the price agreed upon at that time. On hearing this reply of Mooney, Lawaan warned him that if he
did not pay, something would happen to him, to which Mooney answered that if they wanted to do something to him
they should wait until after breakfast, Lawaan then left with his men, and Mooney, after partaking of his morning
meal, returned to his shop.

On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had
taken a seat on a chair in front of the Perpetua, his back being to the window. Mooney had not been there long
when Perpetua saw Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the latter, the
knife lodged in the back of the chair on which Mooney was seated. Mooney fell from the chair as a result of the force
of the blow, but was not injured. Borinaga ran away towards the market place. Before this occurred, it should be
stated that Borinaga had been heard to tell a companion: "I will stab this Mooney, who is an American brute." After
the attack, Borinaga was also heard to say that he did not hit the back of Mooney but only the back of the chair. But
Borinaga was persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in hand, to
renew it, but was unable to do so because Mooney and Perpetua were then on their guard and turned a flashlight on
Borinaga, frightening him away. Again the same night, Borinaga was overheard stating that he had missed his mark
and was unable to give another blow because of the flashlight. The point of the knife was subsequently, on
examination of the chair, found embedded in it.

The foregoing occurrences gave rise to the prosecution of Basilio Borinaga in the Court of First Instance of Leyte for
the crime of frustrated murder. The defense was alibi, which was not given credence. The accused was convicted as
charged, by Judge Ortiz, who sentenced him to fourteen years, eight months, and one day of imprisonment,
reclusion temporal, with the accessory penalties and the costs.

The homicidal intent of the accused was plainly evidenced. The attendant circumstances conclusively establish that
murder was in the heart and mind of the accused. More than mere menaces took place. The aggressor stated his
purpose, which was to kill, and apologized to his friends for not accomplishing that purpose. A deadly weapon was
used. The blow was directed treacherously toward vital organs of the victim. The means used were entirely suitable
for accomplishment. The crime should, therefore, be qualified as murder because of the presence of the
circumstance of treachery.

The only debatable question, not referred to in the briefs, but which must be decided in order to dispose of the
appeal, is: Do the facts constitute frustrated murder or attempted murder within the meaning of article 3 of the Penal
Code? Although no exact counterpart to the facts at bar has been found either in Spanish or Philippine
jurisprudence, a majority of the court answer the question propounded by stating that the crime committed was that
of frustrated murder. This is true notwithstanding the admitted fact that Mooney was not injured in the least.

The essential condition of a frustrated crime, that the author perform all the acts of execution, attended the attack.
Nothing remained to be done to accomplish the work of the assailant completely. The cause resulting in the failure
of the attack arose by reason of forces independent of the will of the perpetrator. The assailant voluntarily desisted
from further acts. What is known as the subjective phase of the criminal act was passed. (U. S. vs. Eduave [1917],
36 Phil., 209; People vs. Mabugat [1926], 51 Phil., 967.)

No superfine distinctions need be drawn in favor of that accused to establish a lesser crime than that of frustrated
murder, for the facts disclose a wanton disregard of the sanctity of human life fully meriting the penalty imposed in
the trial court.

Based on foregoing considerations, the judgment appealed from will be affirmed, with the costs of this instance
against the appellant.

Avanceña, C.J., Villamor, Ostrand, Johns and Romualdez, JJ., concur. lawphi1>net

Separate Opinions
https://www.lawphil.net/judjuris/juri1930/dec1930/gr_l-33463_1930.html 1/2
9/27/2018 G.R. No. 33463

VILLA-REAL, J., dissenting:

We dissent from the opinion of the majority in so far as it finds the defendant-appellant guilty of the crime of
frustrated murder instead of that of an attempt to commit murder.

Article 3 of the Penal Code provides as follows:

ART. 3. Frustrated felonies and attempts to commit felonies are punishable, as well as those which are
consummated.

A felony is frustrated when the offender performs all the acts of execution which should produce the felony as
a consequence, but which, nevertheless, do no produce it by reason of causes independent of the will of the
perpetrator.

There is an attempt when the offender commences the commission of the felony directly by overt acts, and
does not perform all the acts of execution which constitute the felony by reason of some cause or accident
other than his own voluntary desistance.

The pertinent facts as found by the court below and by this court are the following:

On the evening of the same day, Mooney was in the store of a neighbor by the name of Perpetua Najarro. He had
taken a seat on a chair in front of Perpetua, his back being to the window. Mooney had not been there long when
Perpetua saw Basilio Borinaga from the window strike with a knife at Mooney, but fortunately for the latter, the knife
lodged in the back of the chair on which Mooney was seated. Mooney fell from the chair as a result of the force of
the blow, but was not injured. Borinaga ran away towards the market place. Before this occurred, it should be stated
that Borinaga had been heard to tell a companion: "I will stab this Mooney, who is an American brute." After the
attack, Borinaga was also heard to say that he did not hit the back of Mooney but only the back of the chair. But
Borinaga was persistent in his endeavor, and hardly ten minutes after the first attack, he returned, knife in hand, to
renew it, but was unable to do so because Mooney and Perpetua were then on their guard and turned a flashlight on
Borinaga, frightening him away. Again that same night, Borinaga was overheard stating that he had missed his mark
and was unable to give another blow because of the flashlight. The point of the knife was subsequently, on
examination of the chair, found embedded in it.

Since the facts constituting frustrated felony and those constituting an attempt to commit felony are integral parts of
those constituting consummated felony, it becomes important to know what facts would have been necessary in
order that the case at bar might have been a consummated murder, so that we may determine whether the facts
proved during the trial constitute frustrated murder or simply an attempt to commit murder.

In order that the crime committed by the defendant-appellant might have been a consummated murder it would have
been necessary for him to have inflicted a deadly wound upon a vital spot of the body of Mooney, with treachery, as
a result of which he should have died.

Since according to the definition given by the Code a frustrated felony is committed "when the offender performs all
the acts of execution which should produce the felony as a consequence, but which, nevertheless, do not produce it
by reason of causes independent of the will of the perpetrator" let us examine the facts of record to find out whether
the said defendant-appellant has performed all the acts of execution which should produce the murder of Mooney as
a consequence. The prisoner at bar, intending to kill Mooney, approached him stealthily from behind and made
movement with his right hand to strike him in the back with a deadly knife, but the blow, instead of reaching the spot
intended, landed on the frame of the back of the chair on which Mooney was sitting at the time and did not cause
the slightest physical injury on the latter. The acts of execution performed by the defendant-appellant did not
produce the death of Mooney as a consequence nor could they have produced it because the blow did not reach his
body; therefore the culprit did not perform all the acts of execution which should produce the felony. There was
lacking the infliction of the deadly wound upon a vital spot of the body of Mooney.

It is true that the frame of the back of the chair stood between the deadly knife and the back of Mooney; but what it
prevented was the wounding of said Mooney in the back and not his death, had he been wounded. It is the
preventing of death by causes independent of the will of the perpetrator, after all the acts of execution which should
produce the felony as a consequence had been performed, that constitutes frustrated felony, according to the law,
and not the preventing of the performance of all the acts of execution which constitute the felony, as in the present
case. The interference of the frame of the back of the chair which prevented the defendant-appellant from wounding
Mooney in the back with a deadly knife, made his acts constitute an attempt to commit murder; for he had
commenced the commission of the felony directly by overt acts, and did not perform all the acts of execution which
constitute the felony by reason of a cause or accident other than his own voluntary desistance.

The foregoing considerations force us to the conclusion that the facts alleged in the information and proved during
the trial are not sufficient to constitute the crime of frustrated murder, but simply the crime of an attempt to commit
murder.

Johnson and Street, JJ., concur.

The Lawphil Project - Arellano Law Foundation

https://www.lawphil.net/judjuris/juri1930/dec1930/gr_l-33463_1930.html 2/2

Похожие интересы