41. G.R. No. L-47941 April 30, 1985

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JAIME TOMOTORGO y ALARCON, defendant-appellant.

 

ALAMPAY, J.:

Jaime Tomotorgo y Alarcon, the accused-appellant in this case, appeals from the decision rendered on December 22, 1977, by the Court of First Instance of Camarines Sur, Branch IV, in Criminal Case No. 403 of said court finding him guilty of the crime of parricide for having killed his wife Magdalena de los Santos. The dispositive portion of said judgment reads, as follows:

WHEREFORE, in view of the foregoing considerations, the accused Jaime Tomotorgo y Alarcon is hereby condemned to suffer the penalty of reclusion perpetua and to indemnify the heirs of the deceased Magdalena delos Santos in the sum of P12,000.00 without subsidiary imprisonment, plus costs. And considering the circumstances under which the offense was committed, the court hereby recommends executive clemency for him, after

serving the minimum of the medium penalty of prision mayor.

Let copy of this decision be furnished, his Excellency, the President of the Philippines, and the Chairman of the Board of Pardons and Parole.

SO ORDERED.

Given at Naga City, this 22nd day of December, 1977.

SGD. ALFREDO S. REBUENAJudge (Rollo, pg. 10)

 

The facts of this case as recited in the decision of the trial court and in the appellee's brief stand uncontroverted and undisputed. From the evidence submitted it is disclosed that the victim, Magdalena de los Santos, was the wife of the herein accused. Several months prior to the occurrence of the fatal incident on June 23, 1977, Magdalena de los Santos had been persistently asking her husband to sell the conjugal home which was then located at Sitio Dinalungan, Barangay Cabugao, Municipality of Siruma, Camarines Sur. She wanted their family to transfer to the house of her husband's in-laws which is in the town of Tinambac, Camarines Sur. (TSN, pp. 6-10, December 13, 1977).

Accused Tomotorgo would not accede to his wife's request. He did not like to abandon the house wherein he and his wife were then living. Furthermore, he had no inclination to leave because he has many plants and improvements on the land which he was then farming in said municipality of Siruma, Camarines Sur, a town very far from the place of his in-laws where his wife desired their family to transfer to.

On June 23, 1977, at about seven o'clock in the morning, the accused left his home to work on his farm Upon his return at about nine o'clock that same morning. He found his wife and his three-month old baby already gone. He proceeded to look for both of them and sometime later on, on a trail about two hundred (200) meters from their home, he finally saw his wife carrying his infant son and bringing a bundle of clothes. He asked and pleaded with his wife that she should return home with their child but she adamantly refused to do so. When appellant sought to take the child from his wife, the latter threw the baby on the grassy portion of the trail hereby causing the latter to cry. This conduct of his wife aroused the ire of the herein accused. Incensed with wrath and his anger beyond control, appellant picked lip a piece of wood nearby and started hitting his wife with it until she fell to the ground complaining of severe pains on her chest. Realizing what he had done, the

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accused picked his wife in his arms and brought her to their home. He then returned to the place where the child was thrown and he likewise took this infant home. Soon thereafter, Magdalena de los Santos died despite the efforts of her husband to alleviate her pains.

After the accused changed the dress of his wife, he reported the tragic incident to the Barangay Captain of their place who brought him to Policeman Arellosa to whom the accused surrendered. He also brought with him the piece of wood he used in beating his wife.

Charged with the crime of parricide, the accused at his arraignment on November 24, 1977, with assistance from his counsel de-oficio, pleaded not guilty to the said offense. However, when his case was called for trial on December 13, 1977, his counsel manifested to the court that after his conference with the accused, the latter expressed a desire to change his previous plea of not guilty to that of guilty. Accordingly, and upon motion by the counsel of the accused and without objection on the part of the prosecution, the trial court allowed the accused to withdraw his original plea. Upon being re-arraigned, the accused entered a plea of guilty. He confirmed the manifestations made by his counsel to the court regarding his desire to change his initial plea. He expressed his realization of the gravity

of the offense charged against him and the consequences of his plea. His counsel was then permitted by the court to establish the mitigating circumstances which were then invoked in favor of the accused.

After the accused had testified and upon his plea given in open court, the court below found him guilty of the crime of parricide, but with three mitigating circumstances in his favor, namely: voluntary surrender, plea of guilty, and that he acted upon an impulse so powerful as naturally to have produced passion and obfuscation.

With the imposition by the court below of the penalty of reclusion perpetua on the herein accused and the subsequent denial of his motion for reconsideration of the judgment rendered against him, the accused through his counsel filed a notice of appeal to this Court.

In his appeal, accused argues and contends that the lower court erred:

1. In disregarding its own findings of fact which showed manifest lack of intent to kill;

2. In disregarding the provisions of Article 49 of the Revised Penal Code which prescribes the proper applicable penalty where the crime committed is different from that intended;

3. In not following the mandatory sequence of procedures for determining the correct applicable penalty;

4. In denying the appellant the benefits of the Indeterminate Sentence Law. (Appellant's Brief, pg. 1, pars. 1-4)

We find no merit in the appeal of the accused herein which assails only the correctness of the penalty imposed by the trial court on him.

Appellant submits that the penalty for the felony committed by him which is parricide being higher than that for the offense which he intended to commit, and which he avers to be that of physical injuries only, the provisions of Article 49 of the Revised Penal Code which relate to the application of penalties should have been observed and followed by the trial court. The said provision of law which accused invokes provides that:

ART. 49. Penalty to be imposed upon the principals when the crime committed is different from that intended in cases in which the felony committed is different from that which the offender intended to commit, the following rules shag be observed;

1. If the penalty prescribed for the felony committed be higher than that corresponding to

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the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period.

xxx xxx xxx

Continuing, appellant argues in his appeal brief submitted to this Court, that:

xxx xxx xxx

The felony actually committed, parricide. has a higher penalty (reclusion perpetua to death) than the felony intended, qualified physical injuries (reclusion temporal medium and maximum). Hence, since the penalty corresponding to the felony intended shall be imposed in its maximum period, the prescribed penalty is therefore reclusion temporal maximum. This is a divisible penalty.

Under Article 64, sub-par. 5, of the Penal Code,

When there are two or more mitigating circumstances and no aggravating circumstances are present, the court shall impose the penalty next lower to that prescribed by law, in the period that it may deem applicable, according to the number and nature of such circumstances.

The trial court itself found "that the accused is entitled to three (3) mitigating circumstances with no aggravating circumstances, namely: voluntary

surrender, plea of guilty, and obfuscation. We submit that the plea of guilty, which, as we had shown earlier, was improvidently made, should no longer be considered. This leaves only two mitigating with no aggravating. Sufficient compliance with the law. Hence, an automatic lowering of the penalty by one degree, or to reclusion temporal medium This being a case where a period constitutes the entire range of the penalty prescribed, and therefore, also a degree. (Appellant's Brief, pp. 8-9)

Appellant maintains the belief that he should be punished only for the offense he intended to commit which he avers to be serious physical injuries, qualified by the fact that the offended party is his spouse. Pursuant to the sub-paragraph of paragraph 4 of Art. 263 of the Revised Penal Code and as his wife is among the persons mentioned in Art. 246 of the same code, appellant contends that the penalty imposable should then be reclusion temporal in its medium and maximum periods. On this mistaken premise, appellant therefore claims that the penalty prescribed by law for his offense is divisible and he should thus be entitled to the benefits of the Indeterminate Sentence Law.

These contentions of the accused are manifestly untenable and incorrect. Article 4 of the Revised Penal Code expressly states that criminal liability

shall be incurred by any person committing a felony (delito) although the wrongful act be different from that which he intended and that the accused is liable for all the consequences of his felonious acts.

The reference made by the accused to Article 263 of the Revised Penal Code which prescribes graduated penalties for the corresponding physical injuries committed is entirely misplaced and irrelevant considering that in this case the victim died very soon after she was assaulted. It will be, therefore, illogical to consider appellant's acts as falling within the scope of Article 263 of the Revised Penal Code. The crime committed is parricide no less.

We are in complete accord with and we sustain the ruling made by the courts below that the accused is not entitled to the benefits of the Indeterminate Sentence Law. The court sustains the submissions of the appellee that —

... Article 49 of the Revised Penal Code does not apply to cases where more serious consequences not intended by the offender result from his felonious act because, under Article 4, par. I of the same Code, he is liable for all the direct and natural consequences of his unlawful act. His lack of intention to commit so grave a wrong is, at best mitigating (Article 13, par. 3).

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Article 49 applies only to cases where the crime committed is different from that intended and where the felony committed befalls a different person (People vs. Albuquerque, 59 Phil. 150).

Article 246 of the Revised Penal Code punished parricade with the penalty of reclusion perpetua to death, which are two indivisible penalties. As the commission of the act was attended by mitigitating circumstances with no aggravating circumstances, the lesser penalty, which is reclusion perpetua, should be imposed (People vs. Laureano, et al., 71 Phil. 530; People vs. Francisco, 78 Phil. 697; People vs. Belarmino, 91 Phil. 118) Appellee's Brief, pp. 6-7). (Emphasis supplied)

We hold that the fact that the appellant intended to maltreat the victim only or inflict physical imjuries does not exempt him from liability for the resulting and more serious crime committed. In the case of People vs. Climaco Demiar, 108 Phil. 651, where the accused therein had choked his mother in a fit of anger because the latter did not prepare any food for him, it was ruled that hte crime committed by Demiar is parricide (Article 246, Revised Penal Code), the deceased victim of his criminal act being his legitimate mother. Said crime was declared as punishable with reclusion perpetua to death. As the mitigating circumstance of alck of intent to commit so grave

a wrong. (Article 13 (3 Id.) The penalty imposed on the herein accused is therefore correct in the light of the relevant provisions of law and jurisprudence.

The trial court in its consideration of this case had added a recommendation that "executive clemency be extended to the accused-appellant after his service of the minimum of the medium penalty of prison mayor." The Solicitor General likewise concludes and prays in the People's Brief that in view of the circumstances which attended the commission of the offense, a recommendation for the commutation of the penalty would be appropriate. (Appellee's Brief, pg. 7). This Court is constrained to take note that the accused-appellant is said to have been in detention since June 23, 1977 or for more than seven years already. This Court can do no less than express its hope that hte accused-appellant can be now extended an absolute or conditional pardon by the President of the Republic of the Philippines or that there be a commutation of his sentence so that he may qualify and be eligible for parole.

WHEREFORE, the appealed judgment is hereby affirmed without any pronouncement as to costs.

Considering the circumstances which attended the commission of the offense, the manifest repentant attitude of the accused and his

remorse for his act which even the trial court made particular mention of in its decision and the recommendation made by the Office of the Solicitor General as well as number of years that the accused-appellant had been imprisoned, this Court can do no less than recommend that executive clemency be extended to the accused-appellant, Jaime Tomotorgo y Alarcon, or that his sentence be commuted so that he can now qualify and be considered eligible for parole. This recommendation of the Court should be promptly brought to the attention of the President of the Republic of the Philippines by the proper authorities in whose custody the herein accused has been placed.

Aside from this, let copy of this decision be furnished the Office of the President of the Republic of the Philippines and the Chairman of the Board of Pardons and Parole.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova, Gutierrez, Jr. and De la Fuente, JJ., concur.

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42. G.R. No. L-36282 December 10, 1976

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.COSME MONLEON, accused-appellant.

Prospero A. Crescini, for appellant.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T. Limcaoco and Solicitor Pio C. Guerrero for appellee.

 

AQUINO, J.:

Cosme Monleon appealed from the decision of the Court of First Instance of Cebu, finding him guilty of parricide, sentencing him to reclusion perpetua, and ordering him to pay the heirs of his deceased wife, Concordia Bongo, an indemnity of twelve thousand pesos plus moral damages in the sum of two thousand pesos (Criminal Case No. BO-121).

After that judgment was read to him in open court on January 11, 1973, he asked that the penalty be reduced (156 tsn). The court advised him to appeal if he was not satisfied with the penalty.

The Solicitor General submits that the judgment of conviction should be affirmed but recommends executive clemency because the penalty of reclusion perpetua appears to be excessive, considering the degree of malice exhibited by Monleon (Art. 5, Revised Penal Code; Sec. 14, Art. IX, 1973 Constitution).

The judgment was based on the following facts:

Appellant Monleon and his wife, Concordia Bongo, who had been married for twenty-six years (Exh. A), were residents of Barrio Lunas, Borbon, Cebu. On June 1, 1970 Monleon, a forty-five year old illiterate farmer, worked in the palihug (a sort of bayanihan) at the farm of Tomas Rosello, his brother-in-law. There, he imbibed copious amounts of tuba, the coconut wine that is a causative factor in the rampancy of criminality or lawlessness in rural areas.

At about seven o'clock in the evening of that day, June 1, Cosme Monleon arrived at his house. He was drunk. He inquired from Concordia whether their carabao had been fed by their ten-year old son, Marciano. She assured him that the carabao had been fed. He repaired to the place where the carabao was tethered to check the veracity of her statement. He discovered that the carabao had not been adequately fed. He became furious.

When he was about to whip Marciano, Concordia intervened. A violent quarrel ensued between them. He placed himself astride his wife's chest, squezzed her neck, pressed her head against a post, and kicked her in the abdomen.

He shouted: "What do I care if there would be someone who would be buried tomorrow. You let your brothers and sisters stand up and I will also include them." Felicisimo, one of the couple's six children, pulled away his father and stopped his assault on Concordia.

The following morning Concordia vomitted blood. She died at eleven o'clock on that morning of June 2. Death was due to "acute abdomen" (Exh. B), a pathologic condition within the belly, requiring surgical intervention (Blakiston's New Gould Medical Dictionary, 2nd Edition, page 2).

Sixteen days after Concordia Bongo's death, or on June 18, Monleon thumbmarked a confession, written in the Cebuano dialect and sworn to before the town mayor (Exh. C). He admitted in that confession that he assaulted his wife and that he had repented for the wrong which he had done to her. He orally admitted to Perfecto Bongo, a lieutenant in the Cebu City police department and a relative of Concordia, that he (Monleon) assaulted his wife because he was drunk and she was a nagger (133-134 tsn November 24, 1972).

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On July 31, 1970 or about two months after Concordia's death, a medico-legal officer of the National Bureau of Investigation (NBI) exhumed her body. He found bluish-black discolorations on the sphenoid temporal bones of her skull, on the atlas or cervical vertebra below the skull or at the base of the neck, and on the first ribs. The discolorations were due to internal hemorrhage "caused by trauma or external violence" (Exh. D-1; 21-24 tsn). The doctor ventured the opinion that the "acute abdomen" could have been caused "by external violence" (37 tsn).

Appellant Monleon, by means of his testimony and the testimonies of his nineteen-year old daughter, Felicisima, and his twelve-year old son, Marciano (a third-grade pupil), denied that he used violence against his wife. He testified that he and his wife had merely a verbal quarrel and that Clemencia Bongo-Monleon, the sister of Concordia and the wife of his elder brother, testified against him because Clemencia and Monleon had a boundary dispute regarding the lands inherited by Clemencia and Concordia from their father, Victor Bongo.

Monleon said that Lieutenant Bongo asked him to sign a "recibo" that he would take care of his children (113 tsn). He also said that some persons threatened to kill him if he did not affix his thumbmark to his confession (116 tsn).

As already stated, the trial court convicted Monleon of parricide. In this appeal, his counsel de oficio the trial court erred in giving credence to Monleon's confession, the affidavit of his son, Marciano (Exh. E), and the testimonies of the prosecution witnesses, Clemencia Bongo-Monleon, Epifania Bongo, Perfecto Bongo, and the NBI medico-legal officer, Doctor Ceferino Cunanan; in treating the alleged declarations of Concordia Bongo to Clemencia's husband as part of the res gestae and in rejecting the testimonies of Monleon and his two children, Marciano and Felicisima.

The crucial fact in this case is that Monleon feloniously assaulted his wife in the evening of June 1, 1970 by choking her, bashing her head against a post and kicking her in the abdomen. He did not use any weapon but the acts of physical violence which he inflicted on her produced internal complications which caused her to vomit blood the next day and eventually snuffed out her life.

The corpus delicti or the fact of the commission of the crime of which Concordia Bongo was the victim was established by the prosecution witnesses, Clemencia Bongo-Monleon and Epifania Bongo. Hence, Monleon's extrajudicial confession (Exh. C) was corroborated by

evidence of the corpus delicti (Sec. 3, Rule 133 and sec. 29, Rule 130, Rules of Court).

The trial court said that it took pains to observe the demeanor on the witness stand of the mayor Epifania, and Clemencia, who all testified for the prosecution, and appellant Monleon himself. It was convinced that the confession "was voluntarily executed by the accused."

Appellant's counsel de oficio contends that there are discrepancies between Monleon's confession and the version given by the prosecution witnesses, Epifania and Clemencia. Those two witnesses testified that Concordia died at eleven o'clock in the morning while Monleon in his confession declared that his wife died at one o'clock in the afternoon. Another discrepancy is that according to prosecution witnesses Monleon was not present when his wife died but according to the confession, he was with her when she breathed her last. Counsel de oficio also points out that the confession was supposed to have been thumbmarked on June 16, 1970 and then sworn to before the mayor two days later or on June 18 but, according to Lieutenant Bongo, he investigated Monleon in the early morning of June 18 and his confession was executed at that time.

We are of the opinion that those discrepancies do not destroy the probative value of the

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confession nor negate Monleon's admission therein that he assaulted his wife. A court may reject portions of the confession by reason of the improbability of the facts or statements therein or because of their falsity or untrustworthiness (People vs. Layos, 60 Phil. 760; People vs. Piring, 63 Phil. 546; People vs. Villanueva, 115 Phil. 858; 22 C.J.S. 1479).

The mayor and Lieutenant Bongo testified that Monleon was not forced to affix his thumbmark to the confession. There is no evidence that he was tortured or maltreated. Monleon could have complained to the fiscal during the preliminary investigation that he was forced to execute his confession. He did not do so.

Attorney Prospero A. Crescini, appellant's counsel de oficio, examined meticulously the evidence, conscientiously studied Page 268 the case and submitted a good brief. He points out that Clemencia and Epifania did not mention that they saw each other when they allegedly witnessed the assault made by Monleon on his wife; that they did not report immediately to the authorities the alleged incident; that it was strange that Epifania did not ask her husband, Gervasio Bongo, the brother of the victim, to stop the assault, and that Clemencia failed to summon her husband, an elder brother of Monleon, to pacify the latter.

Those acts and omission of Clemencia and Epifania do not render their testimonies worthless The two prosecution witnesses are uneducated. The fiscal in his direct examination and the defense counsel did not ask them whether they saw each other in the yard of Monleon's house when they allegedly saw Monleon mauling his wife. Most likely, they assumed that Monleon was merely chastising his wife, as he had repeatedly done in the past, and that he did not intend to kill her. They were not cognizant at first of the grave consequences resulting from Monleon's violent acts. Hence, they did not see the necessity of the intervention of other persons or of the barrio captain and the police.

Appellant's counsel argues that the trial court erred in admitting Marciano Monleon's affidavit which was written in the Cebuano dialect (Exh. E) and which was not accompanied with the corresponding translation. That confession is well-taken.

The trial court erred in admitting that affidavit over the objection of appellant's counsel because section 34, Rule 132 of the Rules of Court provides that documents written in an unofficial language shall not be admitted as evidence, unless accompanied with a translation into English, Spanish or the national language "To

avoid interruption of proceedings, parties or their attorneys are directed to have such translation prepared before trial" (See. 34).

Also meritorious is appellant's contention that the trial court erred in ruling that the alleged declarations of Concordia Bongo to the husband of Clemencia Bongo Monleon, as to the violent acts inflicted upon her (Concordia) by appellant Monleon, are part of the res gestae. That ruling was made in connection with Clemencia's testimony (not on direct examination but in answer to the questions of the trial judge) that at eight o'clock in the evening of June 1, 1970, or about an hour after Concordia was assaulted by Monleon, she (Concordia) left her house and went to Clemencia's house three hundred meters away and recounted to Clemencia's husband (appellant Monleon's brother) how she was beaten by Monleon (22 tsn).

Appellants counsel observed that it was incredible that Concordia, after being severely maltreated by Monleon (according to the prosecution's version), would still have the strength to go to Clemencia's house which was located on a hill.

Clemencia's testimony reveals that she must have been confused in making that assertion, assuming that it was accurately translated and reported. A careful scrutiny of her entire

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testimony reveals that what she really meant was that Concordia on the following day, June 2, recounted to her, as Concordia recounted also to Epifania, how she was maltreated by Monleon. In all probability what happened was that Clemencia, on arriving at her house at around eight o'clock in the evening of June 1, apprised her husband that she witnessed the assault made by Monleon on her sister, Concordia.

The trial court's error in regarding as part of the res gestae the statement supposedly made by Concordia to Clemencia's husband immediately after the incident and its error in admitting Monleon's affidavit are not sufficient to exculpate Monleon or engender any reasonable doubt as to his guilt.

The testimonies of Epifania and Clemencia, the confession of Monleon, as supported by the testimonies of the mayor and Lieutenant Bongo, and the expert opinion of the NBI medico-legal officer are sufficient to establish the guilt of appellant Monleon.

The instant case is covered by article 4 of the Revised Penal Code which provides that criminal liability is incurred by any person committing a felony although the wrongful act done be different from that which he intended. The maltreatment inflicted by Monleon on his wife was the proximate cause of her death.

Monleon in his inebriated state had no intent to kill her. He was infuriated because his son did not feed his carabao. He was provoked to castigate his wife because she prevented him from whipping his negligent son. He could have easily killed his wife had he really intended to take her life. He did not kill her outright.

The trial court did not appreciate any mitigating circumstances in favor of Monleon. The Solicitor General is correct in finding that the extenuating circumstances of lack of intent to commit so grave a wrong and intoxication, which was not habitual, are present in this case. Hence, the penalty imposable on Monleon is reclusion perpetua (Arts. 63[3] and 246, Revised Penal Code).

But considering that Monleon had no intent to kill his wife and that her death might have been hastened by lack of appropriate medical attendance or her weak constitution, the penalty of reclusion perpetua appears to be excessive. A strict enforcement of the provisions of the Penal Code means the imposition of a draconian penalty on Monleon.

This case is similar to People vs. Rabao, 67 Phil. 255 where the husband quarrelled with his wife because he wanted to restrain her from giving a bath to their child, who had a cold. In the course of the quarrel, he punched her in the abdomen.

As a result she suffered an attack and died. He was convicted of parricide and sentenced toreclusion perpetua. The commutation of the penalty was recommended to the Chief Executive (See People vs. Formigones, 87 Phil. 658; U.S. vs. Guevara, 10 Phil. 37; People vs. Castañeda, 60 Phil. 604, 609; People vs. Gungab, 64 Phil. 779).

Therefore, there is sufficient justification for the Solicitor General's recommendation that Monleon's case be brought to the attention of the Chief Executive so that the penalty of reclusion perpetua may be reduced.

WHEREFORE, the trial court's judgment is affirmed. Pursuant to article 5 of the Revised Penal Code, a certified copy of this decision should be furnished the Chief Executive through the Secretary of Justice (See sec. 3[1], Art. XVII, 1973 Constitution). Costs against the appellant.

SO ORDERED.

Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

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43. PhilippineLaw.info » Jurisprudence » 1909 » October » PhilippineLaw.info » Jurisprudence » Phil. Rep. » Vol. 14 »

ONDO MEDICAL CENTER EMPLOYEES ASSOCIATION, RESEARCH INSTITUTE FOR TROPICAL MEDICINE EMPLOYEES ASSOCIATION, NATIONAL ORTHOPEDIC WORKERS UNION, DR. JOSE R. REYES MEMORIAL HOSPITAL EMPLOYEES UNION, SAN LAZARO HOSPITAL EMPLOYEES ASSOCIATION, ALLIANCE OF HEALTH WORKERS, INC., HEALTH ALLIANCE FOR DEMOCRACY, COUNCIL FOR HEALTH DEVELOPMENT, NETWORK OPPOSED TO PRIVATIZATION, COMMUNITY MEDICINE DEVELOPMENT FOUNDATION INC., PHILIPPINE SOCIETY OF SANITARY ENGINEERS INC., KILUSANG MAYO UNO, GABRIELA, KILUSANG MAGBUBUKID NG PILIPINAS, KALIPUNAN NG DAMAYAN NG MGA MARALITA, ELSA O. GUEVARRA, ARCADIO B. GONZALES, JOSE G. GALANG, DOMINGO P. MANAY, TITO P. ESTEVES, EDUARDO P. GALOPE, REMEDIOS M. YSMAEL, ALFREDO BACUATA, EDGARDO J. DAMICOG, REMEDIOS M. MALTU AND REMEGIO S. MERCADO,

Petitioners,

- versus -

THE COURT OF APPEALS, EXECUTIVE SECRETARY ALBERTO G. ROMULO, SECRETARY OF HEALTH MANUEL M. DAYRIT, SECRETARY OF BUDGET AND MANAGEMENT EMILIA T. BONCODIN,

Respondents.

G.R. No. 167324

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

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SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

GARCIA,

VELASCO, JR., and

NACHURA, JJ.

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Promulgated:

July 17, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court, assailing the Decision,[1] promulgated by the Court of Appeals on 26 November 2004, denying a petition for the nullification of the Health Sector Reform Agenda (HSRA) Philippines 1999-2004 of the Department of Health (DOH); and Executive Order No. 102, Redirecting the Functions and Operations of the Department of Health, which was issued by then President Joseph Ejercito Estrada on 24 May 1999.

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Prior hereto, petitioners originally filed a Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the 1997 Revised Rules of Civil Procedure before the Supreme Court on 15 August 2001. However, the Supreme Court, in a Resolution dated 29 August 2001, referred the petition to the Court of Appeals for appropriate action.

HEALTH SECTOR REFORM AGENDA (HSRA)

In 1999, the DOH launched the HSRA, a reform agenda developed by the HSRA Technical Working Group after a series of workshops and analyses with inputs from several consultants, program managers and technical staff possessing the adequate expertise and experience in the health sector. It provided for five general areas of reform: (1) to provide fiscal

autonomy to government hospitals; (2) secure funding for priority public health programs; (3) promote the development of local health systems and ensure its effective performance; (4) strengthen the capacities of health regulatory agencies; and (5) expand the coverage of the National Health Insurance Program (NHIP).[2]

Petitioners questioned the first reform agenda involving the fiscal autonomy of government hospitals, particularly the collection of socialized user fees and the corporate restructuring of government hospitals. The said provision under the HSRA reads:

Provide fiscal autonomy to government hospitals. Government hospitals must be allowed to collect socialized user fees so they can reduce the dependence on direct subsidies from the government. Their critical capacities like diagnostic equipment, laboratory facilities and

medical staff capability must be upgraded to effectively exercise fiscal autonomy. Such investment must be cognizant of complimentary capacity provided by public-private networks. Moreover such capacities will allow government hospitals to supplement priority public health programs. Appropriate institutional arrangement must be introduced such as allowing them autonomy towards converting them into government corporations without compromising their social responsibilities. As a result, government hospitals are expected to be more competitive and responsive to health needs.

Petitioners also assailed the issuance of a draft administrative order issued by the DOH, dated 5 January 2001, entitled Guidelines and Procedure in the Implementation of the Corporate Restructuring of Selected DOH Hospitals to Achieve Fiscal Autonomy, and Managerial Flexibility to Start by January 2001;[3] and Administrative Order No. 172 of the DOH, entitled Policies and Guidelines on the Private Practice of Medical and Paramedical Professionals in Government Health Facilities,[4] dated 9 January 2001, for imposing an added

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burden to indigent Filipinos, who cannot afford to pay for medicine and medical services.[5]

Petitioners alleged that the implementation of the aforementioned reforms had resulted in making free medicine and free medical services inaccessible to economically disadvantaged Filipinos. Thus, they alleged that the HSRA is void for being in violation of the following constitutional provisions:[6]

ART. III, SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the law.

ART II, SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment of all the people of the blessings of democracy.

ART II, SEC. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all.

ART II, SEC. 10. The State shall promote social justice in all phases of national development.

ART II, SEC. 11. The State values the dignity of every human person and guarantees full respect for human rights.

ART II, SEC. 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being x x x.

ART II, SEC. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

ART XV, SEC. 1. The State recognizes the Filipino family as the foundation of the nation.

13

Accordingly, it shall strengthen its solidarity and actively promote its total development.

ART XV, SEC. 3. The State shall defend:

x x x x

(2) the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development.

x x x x

ART XIII, SEC. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.

ART II, SEC. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

ART XIII, SEC. 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social

services available to all people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

EXECUTIVE ORDER NO. 102

On 24 May 1999, then President Joseph Ejercito Estrada issued Executive Order No. 102, entitled Redirecting the Functions and Operations of the Department of Health, which provided for the changes in the roles, functions, and organizational processes of the DOH. Under the

14

assailed executive order, the DOH refocused its mandate from being the sole provider of health services to being a provider of specific health services and technical assistance, as a result of the devolution of basic services to local government units. The provisions for the streamlining of the DOH and the deployment of DOH personnel to regional offices and hospitals read:

Sec. 4. Preparation of a Rationalization and Streamlining Plan. In view of the functional and operational redirection in the DOH, and to effect efficiency and effectiveness in its activities, the Department shall prepare a Rationalization and Streamlining Plan (RSP) which shall be the basis of the intended changes. The RSP shall contain the following:

a) the specific shift in policy directions, functions, programs and activities/strategies;

b) the structural and organizational shift, stating the specific functions and activities by organizational unit and the relationship of each units;

c) the staffing shift, highlighting and itemizing the existing filled and unfilled positions; and

d) the resource allocation shift, specifying the effects of the streamline set-up on the agency budgetary allocation and indicating where possible, savings have been generated.

The RSP shall [be] submitted to the Department of Budget and Management for approval before the corresponding shifts shall be affected (sic) by the DOH Secretary.

Sec. 5. Redeployment of Personnel. The redeployment of officials and other personnel on the basis of the approved RSP shall not result in diminution in rank and compensation of existing personnel. It shall take into account all pertinent Civil Service laws and rules.

Section 6. Funding. The financial resources needed to implement the Rationalization and Streamlining Plan shall be taken from funds available in the DOH, provided that the total requirements for the implementation of the revised staffing pattern shall not exceed available funds for Personnel Services.

Section 7. Separation Benefits. Personnel who opt to be separated from the service as a consequence of the implementation of this Executive Order shall be entitled to the benefits

15

under existing laws. In the case of those who are not covered by existing laws, they shall be entitled to separation benefits equivalent to one month basic salary for every year of service or proportionate share thereof in addition to the terminal fee benefits to which he/she is entitled under existing laws.

Executive Order No. 102 was enacted pursuant to Section 17 of the Local Government Code (Republic Act No. 7160), which provided for the devolution to the local government units of basic services and facilities, as well as specific health-related functions and responsibilities.[7]

Petitioners contended that a law, such as Executive Order No. 102, which effects the reorganization of the DOH, should be enacted by

Congress in the exercise of its legislative function. They argued that Executive Order No. 102 is void, having been issued in excess of the Presidents authority.[8]

Moreover, petitioners averred that the implementation of the Rationalization and Streamlining Plan (RSP) was not in accordance with law. The RSP was allegedly implemented even before the Department of Budget and Management (DBM) approved it. They also maintained that the Office of the President should have issued an administrative order to carry out the streamlining, but that it failed to do so.[9]

Furthermore, petitioners Elsa O. Guevarra, Arcadio B. Gonzales, Jose G. Galang, Domingo P. Manay, Eduardo P. Galope, Remedios M. Ysmael, Alfredo U. Bacuata and Edgardo J. Damicog, all DOH employees, assailed the validity of Executive Order No. 102 on the ground that they were likely to lose their jobs, and that some of them were suffering from the inconvenience of having to travel a longer

distance to get to their new place of work, while other DOH employees had to relocate to far-flung areas.[10]

Petitioners also pointed out several errors in the implementation of the RSP. Certain employees allegedly suffered diminution of compensation,[11] while others were supposedly assigned to positions for which they were neither qualified nor suited.[12] In addition, new employees were purportedly hired by the DOH and appointed to positions for which they were not qualified, despite the fact that the objective of the ongoing streamlining was to cut back on costs.[13] It was also averred that DOH employees were deployed or transferred even during the three-month period before the national and local elections in May 2001,[14] in violation of Section 2 of the Republic Act No. 7305, also known as Magna Carta for Public Health Workers.[15] Petitioners, however, failed to identify the DOH employees referred to above, much less include them as parties to the petition.

16

The Court of Appeals denied the petition due to a number of procedural defects, which proved fatal: 1) Petitioners failed to show capacity or authority to sign the certification of non-forum shopping and the verification; 2) Petitioners failed to show any particularized interest for bringing the suit, nor any direct or personal injury sustained or were in the immediate danger of sustaining; 3) the Petition, brought before the Supreme Court on 15 August 1999, was filed out of time, or beyond 60 days from the time the reorganization methods were implemented in 2000; and 4) certiorari, Prohibition and Mandamus will not lie where the President, in issuing the assailed Executive Order, was not acting as a tribunal, board or officer exercising judicial or quasi-judicial functions.

In resolving the substantial issues of the case, the Court of Appeals ruled that the HSRA cannot be declared void for violating Sections 5, 9, 10, 11, 13, 15, 18 of Article II; Section 1 of Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3(2) of Article XV, all of the 1987 Constitution, which directly or indirectly pertain to the duty of the State to protect and promote the

peoples right to health and well-being. It reasoned that the aforementioned provisions of the Constitution are not self-executing; they are not judicially enforceable constitutional rights and can only provide guidelines for legislation.

Moreover, the Court of Appeals held that the petitioners assertion that Executive Order No. 102 is detrimental to the health of the people cannot be made a justiciable issue. The question of whether the HSRA will bring about the development or disintegration of the health sector is within the realm of the political department.

Furthermore, the Court of Appeals decreed that the President was empowered to issue Executive Order No. 102, in accordance with Section 17 Article VII of the 1987 Constitution. It also declared that the DOH did not implement Executive Order No. 102 in bad faith or with

grave abuse of discretion, as alleged by the petitioners, as the DOH issued Department Circular No. 275-C, Series of 2000, which created the different committees tasked with the implementation of the RSP, only after both the DBM and Presidential Committee on Effective Governance (PCEG) approved the RSP on 8 July 2000 and 17 July 2000, respectively.

Petitioners filed with the Court of Appeals a Motion for Reconsideration of the Decision rendered on 26 November 2004, but the same was denied in a Resolution dated 7 March 2005.

Hence, the present petition, where the following issues are raised:

17

I.

THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR IN RULING THAT ANY QUESTION ON THE WISDOM AND EFFICACY OF THE HEALTH SECTOR REFORM AGENDA IS NOT A JUSTICIABLE CONTROVERSY AND THAT THE CONSTITUTIONAL PROVISIONS PROTECTING THE HEALTH OF THE FILIPINO PEOPLE ARE NOT JUDICIALLY ENFORCEABLE;

II.

THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR IN RULING THAT PETITIONERS COMPLAINT THAT EXECUTIVE ORDER NO. 102 IS DETRIMENTAL TO THE FILIPINO IS LIKEWISE NOT A JUSTICIABLE CONTROVERSY AND THAT THE PRESIDENT HAS THE AUTHORITY TO ISSUE SAID ORDER; AND

III.

THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR IN UPHOLDING TECHNICALITIES OVER AND ABOVE THE ISSUES OF TRANSCENDENTAL IMPORTANCE RAISED IN THE PETITION BELOW. [16]

The Court finds the present petition to be without merit.

Petitioners allege that the HSRA should be declared void, since it runs counter to the aspiration and ideals of the Filipino people as embodied in the Constitution.[17] They claim that the HSRAs policies of fiscal autonomy, income generation, and revenue enhancement violate Sections 5, 9, 10, 11, 13, 15 and 18 of Article II, Section 1 of Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3 of Article XV of the 1987 Constitution. Such policies allegedly resulted in making inaccessible free medicine and free medical services. This contention is unfounded.

18

As a general rule, the provisions of the Constitution are considered self-executing, and do not require future legislation for their enforcement. For if they are not treated as self-executing, the mandate of the fundamental law can be easily nullified by the inaction of Congress.[18] However, some provisions have already been categorically declared by this Court as non self-executing.

In Tanada v. Angara,[19] the Court specifically set apart the sections found under Article II of the 1987 Constitution as non self-executing and ruled that such broad principles need legislative enactments before they can be implemented:

By its very title, Article II of the Constitution is a declaration of principles and state policies. x x x. These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used

by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws.

In Basco v. Philippine Amusement and Gaming Corporation,[20] this Court declared that Sections 11, 12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article XIV of the 1987 Constitution are not self-executing provisions. In Tolentino v. Secretary of Finance,[21] the Court referred to Section 1 of Article XIII and Section 2 of Article XIV of the Constitution as moral incentives to legislation, not as judicially enforceable rights. These provisions, which merely lay down a general principle, are distinguished from other constitutional provisions as non self-executing and, therefore, cannot give rise to a cause of action in the courts; they do not embody judicially enforceable constitutional rights.[22]

Some of the constitutional provisions invoked in the present case were taken from Article II of the Constitution -- specifically, Sections 5, 9, 10, 11, 13, 15 and 18 -- the provisions of which the Court categorically ruled to be non self-executing in the aforecited case of Taada v. Angara.[23]

Moreover, the records are devoid of any explanation of how the HSRA supposedly violated the equal protection and due process clauses that are embodied in Section 1 of Article III of the Constitution. There were no allegations of discrimination or of the lack of due process in connection with the HSRA. Since they failed to substantiate how these constitutional guarantees were breached, petitioners are unsuccessful in establishing the relevance of this provision to the petition, and consequently, in annulling the HSRA.

19

In the remaining provisions, Sections 11 and 14 of Article XIII and Sections 1 and 3 of Article XV, the State accords recognition to the protection of working women and the provision for safe and healthful working conditions; to the adoption of an integrated and comprehensive approach to health; to the Filipino family; and to the right of children to assistance and special protection, including proper care and nutrition. Like the provisions that were declared as non self-executory in the cases of Basco v. Philippine Amusement and Gaming Corporation[24] and Tolentino v. Secretary of Finance,[25] they are mere statements of principles and policies. As such, they are mere directives addressed to the executive and the legislative departments. If unheeded, the remedy will not lie with the courts; but rather, the electorates displeasure may be manifested in their votes.

The rationale for this is given by Justice Dante Tinga in his Separate Opinion in the case of Agabon v. National Labor Relations Commission[26]:

x x x However, to declare that the constitutional provisions are enough to guarantee the full exercise of the rights embodied therein, and the realization of the ideals therein expressed, would be impractical, if not unrealistic. The espousal of such view presents the dangerous tendency of being overbroad and exaggerated. x x x Subsequent legislation is still needed to define the parameters of these guaranteed rights. x x x Without specific and pertinent legislation, judicial bodies will be at a loss, formulating their own conclusion to approximate at least the aims of the Constitution.

The HSRA cannot be nullified based solely on petitioners bare allegations that it violates the general principles expressed in the non self-

executing provisions they cite herein. There are two reasons for denying a cause of action to an alleged infringement of broad constitutional principles: basic considerations of due process and the limitations of judicial power.[27]

Petitioners also claim that Executive Order No. 102 is void on the ground that it was issued by the President in excess of his authority. They maintain that the structural and functional reorganization of the DOH is an exercise of legislative functions, which the President usurped when he issued Executive Order No. 102.[28] This line of argument is without basis.

This Court has already ruled in a number of cases that the President may, by executive or administrative order, direct the reorganization of government entities under the Executive Department.[29] This is also sanctioned under the Constitution, as well as other statutes.

20

Section 17, Article VII of the 1987 Constitution, clearly states: [T]he president shall have control of all executive departments, bureaus and offices. Section 31, Book III, Chapter 10 of Executive Order No. 292, also known as the Administrative Code of 1987 reads:

SEC. 31. Continuing Authority of the President to Reorganize his Office - The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions:

(1) Restructure the internal organization of the Office of the President Proper, including the immediate offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by abolishing consolidating or merging units thereof or transferring functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments or Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other Departments or agencies.

In Domingo v. Zamora,[30] this Court explained the rationale behind the Presidents continuing authority under the Administrative Code to reorganize the administrative structure of the Office of the President. The law grants the President the power to reorganize the Office of the President in recognition of the recurring need of every President to reorganize his or her office to achieve simplicity, economy and efficiency. To remain effective and efficient, it must be capable of being shaped and reshaped by the President in the manner the Chief Executive deems fit to carry out presidential directives and policies.

21

The Administrative Code provides that the Office of the President consists of the Office of the President Proper and the agencies under it.[31] The agencies under the Office of the President are identified in Section 23, Chapter 8, Title II of the Administrative Code:

Sec. 23. The Agencies under the Office of the President.The agencies under the Office of the President refer to those offices placed under the chairmanship of the President, those under the supervision and control of the President, those under the administrative supervision of the Office of the President, those attached to it for policy and program coordination, and those that are not placed by law or order creating them under any specific department. (Emphasis provided.)

Section 2(4) of the Introductory Provisions of the Administrative Code defines the term agency of the government as follows:

Agency of the Government refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein.

Furthermore, the DOH is among the cabinet-level departments enumerated under Book IV of the Administrative Code, mainly tasked with the functional distribution of the work of the President.[32] Indubitably, the DOH is an agency which is under the supervision and control of the President and, thus, part of the Office of the President. Consequently, Section 31, Book III,

Chapter 10 of the Administrative Code, granting the President the continued authority to reorganize the Office of the President, extends to the DOH.

The power of the President to reorganize the executive department is likewise recognized in general appropriations laws. As early as 1993, Sections 48 and 62 of Republic Act No. 7645, the General Appropriations Act for Fiscal Year 1993, already contained a provision stating that:

Sec. 48. Scaling Down and Phase Out of Activities Within the Executive Branch.The heads of departments, bureaus and offices and agencies are hereby directed to identify their respective activities which are no longer essential in the delivery of public services and which may be scaled down, phased out, or abolished, subject to civil service rules and regulations. x x x. Actual scaling down, phasing out, or abolition

22

of activities shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of the President. (Emphasis provided.)

Sec. 62. Unauthorized Organizational Changes. Unless otherwise created by law or directed by the President of the Philippines, no organizational unit or changes in key positions in any department or agency shall be authorized in their respective organizational structures and be funded form appropriations by this Act.

Again, in the year when Executive Order No. 102 was issued, The General Appropriations Act of Fiscal Year 1999 (Republic Act No. 8745) conceded to the President the power to make any changes in any of the key positions and

organizational units in the executive department thus:

Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the President of the Philippines, no changes in key positions or organizational units in any department or agency shall be authorized in their respective organizational structures and funded from appropriations provided by this Act.

Clearly, Executive Order No. 102 is well within the constitutional power of the President to issue. The President did not usurp any legislative prerogative in issuing Executive Order No. 102. It is an exercise of the Presidents constitutional power of control over the executive department, supported by the provisions of the Administrative

Code, recognized by other statutes, and consistently affirmed by this Court.

Petitioners also pointed out several flaws in the implementation of Executive Order No. 102, particularly the RSP. However, these contentions are without merit and are insufficient to invalidate the executive order.

The RSP was allegedly implemented even before the DBM approved it. The facts show otherwise. It was only after the DBM approved the Notice of Organization, Staffing and Compensation Action on 8 July 2000,[33] and after the Presidential Committee on Effective Governance (PCEG) issued on 17 July 2000 Memorandum Circular No. 62,[34] approving the RSP, that then DOH Secretary Alberto G. Romualdez issued on 28 July 2000 Department Circular No. 275-C, Series of 2000,[35] creating the different committees to implement the RSP.

23

Petitioners also maintain that the Office of the President should have issued an administrative order to carry out the streamlining, but that it failed to do so. Such objection cannot be given any weight considering that the acts of the DOH Secretary, as an alter ego of the President, are presumed to be the acts of the President. The members of the Cabinet are subject at all times to the disposition of the President since they are merely his alter egos.[36] Thus, their acts, performed and promulgated in the regular course of business, are, unless disapproved by the President, presumptively acts of the President.[37] Significantly, the acts of the DOH Secretary were clearly authorized by the President, who, thru the PCEG, issued the aforementioned Memorandum Circular No. 62, sanctioning the implementation of the RSP.

Petitioners Elsa Odonzo Guevarra, Arcadio B. Gonzales, Jose G. Galang, Domingo P. Manay,

Eduardo P. Galope, Remedios M. Ysmael, Alfredo U. Bacuata, and Edgardo Damicog, all DOH employees, assailed the validity of Executive Order No. 102 on the ground that they were likely to lose their jobs, and that some of them were suffering from the inconvenience of having to travel a longer distance to get to their new place of work, while other DOH employees had to relocate to far-flung areas.

In several cases, this Court regarded reorganizations of government units or departments as valid, for so long as they are pursued in good faiththat is, for the purpose of economy or to make bureaucracy more efficient.[38] On the other hand, if the reorganization is done for the purpose of defeating security of tenure or for ill-motivated political purposes, any abolition of position would be invalid. None of these circumstances are applicable since none of the petitioners were removed from public service, nor did they identify any action taken by the DOH that would unquestionably result in their dismissal. The reorganization that was pursued in the present case was made in good faith. The RSP was clearly designed to improve the

efficiency of the department and to implement the provisions of the Local Government Code on the devolution of health services to local governments. While this Court recognizes the inconvenience suffered by public servants in their deployment to distant areas, the executive departments finding of a need to make health services available to these areas and to make delivery of health services more efficient and more compelling is far from being unreasonable or arbitrary, a determination which is well within its authority. In all, this Court finds petitioners contentions to be insufficient to invalidate Executive Order No. 102.

Without identifying the DOH employees concerned, much less including them as parties to the petition, petitioners went on identifying several errors in the implementation of Executive Order No. 102. First, they alleged that unidentified DOH employees suffered from a diminution of compensation by virtue of the provision on Salaries and Benefits found in Department Circular No. 312, Series of 2000, issued on 23 October 2000, which reads:

24

2. Any employee who was matched to a position with lower salary grade (SG) shall not suffer a reduction in salary except where his/her current salary is higher than the maximum step of the SG of the new position, in which case he/she shall be paid the salary corresponding to the maximum step of the SG of the new position. RATA shall no longer be received, if employee was matched to a Non-Division Chief Position.

Incidentally, the petition shows that none of the petitioners, who are working in the DOH, were entitled to receive RATA at the time the petition was filed. Nor was it alleged that they suffered any diminution of compensation. Secondly, it was claimed that certain unnamed DOH employees were matched with unidentified positions for

which they were supposedly neither qualified nor suited. New employees, again unnamed and not included as parties, were hired by the DOH and appointed to unidentified positions for which they were purportedly not qualified, despite the fact that the objective of the ongoing streamlining was to cut back on costs. Lastly, unspecified DOH employees were deployed or transferred during the three-month period before the national and local elections in May 2001, in violation of Section 2 of the Republic Act No. 7305, also known as Magna Carta for Public Health Workers.

Petitioners allegations are too general and unsubstantiated by the records for the Court to pass upon. The persons involved are not identified, details of their appointments and transfers such as position, salary grade, and the date they were appointed - are not given; and the circumstances which attended the alleged violations are not specified.

Even granting that these alleged errors were adequately proven by the petitioners, they would

still not invalidate Executive Order No. 102. Any serious legal errors in laying down the compensation of the DOH employees concerned can only invalidate the pertinent provisions of Department Circular No. 312, Series of 2000. Likewise, any questionable appointments or transfers are properly addressed by an appeal process provided under Administrative Order No. 94, series of 2000;[39] and if the appeal is meritorious, such appointment or transfer may be invalidated. The validity of Executive Order No. 102 would, nevertheless, remain unaffected. Settled is the rule that courts are not at liberty to declare statutes invalid, although they may be abused or misabused, and may afford an opportunity for abuse in the manner of application. The validity of a statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.[40]

In a number of cases,[41] the Court upheld the standing of citizens who filed suits, wherein the transcendental importance of the constitutional question justified the granting of relief. In spite of these rulings, the Court, in Domingo v. Carague,

25

[42] dismissed the petition when petitioners therein failed to show any present substantial interest. It demonstrated how even in the cases in which the Court declared that the matter of the case was of transcendental importance, the petitioners must be able to assert substantial interest. Present substantial interest, which will enable a party to question the validity of the law, requires that a party sustained or will sustain direct injury as a result of its enforcement.[43] It is distinguished from a mere expectancy or future, contingent, subordinate, or inconsequential interest.[44]

In the same way, the Court, in Telecommunications & Broadcast Attorneys of the Philippines, Inc. v. Comelec,[45] ruled that a citizen is allowed to raise a constitutional question only when he can show that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed by a favorable action. This case likewise stressed that the rule on constitutional questions which are of transcendental importance cannot be invoked where a partys substantive claim is without merit. Thus, a partys standing is determined by the substantive merit of his case or a preliminary estimate thereof. After a careful scrutiny of the petitioners

substantive claims, this Court finds that the petitioners miserably failed to show any merit to their claims.

IN VIEW OF THE FOREGOING, the instant Petition is DENIED. This Court AFFIRMS the assailed Decision of the Court of Appeals, promulgated on 26 November 2004, declaring both the HSRA and Executive Order No. 102 as valid. No costs.

SO ORDERED..

Kincaid and Hurd for appellant. Attorney-General Villamor for appellee. 

CARSON, J.:

The defendant, James L. Brobst, and another American named Mann, were engaged in work on a mine located in the municipality of Masbate, where they gave employment to a number of native laborers. Mann discharged one of these number of native laborers. Mann discharged one of these laborers named Simeon Saldivar, warned him not to come back on the premises, and told the defendant not to employ him again, because he was a thief and a disturbing element with the other laborers. A few days afterwards, some time after 6 o'clock on the morning of the 10th of July, 1907, Saldivar, in company with

three of four others, went to the mine to look for work. The defendant, who at that time was dressing himself inside his tent, which was erected on the mining property, when he caught sight of Saldivar, ordered him off the place, exclaiming in bad Spanish, "Sigue, Vamus!" (Begone). Saldivar made no move to leave, and although the order was repeated, merely smiled or grinned at the defendant, whereupon the latter became enraged, took three steps toward Saldivar, and struck him a powerful blow with his closed fist on the left side, just over the lower ribs, at the point where the handle of Saldivar's bolo lay against the belt from which it was suspended. On being struck, Saldivar threw up his hands, staggered. (dio vueltas — spun around helplessly) and without saying a word, went away in the direction of his sister's house, which stood about 200 yards (100 brazas) away, and about 100 feet up the side of a hill. He died as he reached the door of the house, and was buried some two or three days later.

The trial court found the defendant guilty of the crime of homicide (homicidio), marked with extenuating circumstances, defined in subsections 3 and 7 of article 9 of the Penal Code, in that the defendant "had no intention of committing so grave an injury as that which he inflicted," and that he struck the blow "under such

26

powerful excitement as would naturally produce entire loss of reason and self-control." Sentence of six years and one day of prision mayor was imposed, and from this sentence defendant appealed to this court.

Counsel for the appellant, relying mainly on appellant's claim that he did not strike Saldivar, and that he merely pushed him lightly with the black of his open hand, and relying also on the lack of satisfactory proof of the existence of lesions or external marks of violence on the body of the deceased, contend: first, that the evidence fails to sustain a finding that the deceased came to his death as a result of injuries inflicted by the defendant; and, second, that even if it be a fact that the defendant, in lying his hand upon the deceased, contributed to his death, nevertheless, since the defendant had a perfect right to eject the deceased from the mining property, he can not be held criminally liable for unintentional injuries inflicted in the lawful exercise of this right.

Two witnesses, Dagapdap and Yotiga, who were standing close by the time, swore positively that the blow was delivered with the closed fist, from the shoulder (de dentro para fuera), and that it was a hard blow; Dagapdap testifying that, "Al pegar el puñetazo, Simeon dio vuelta, y despues se marcho (when the blow was struck, Simeon staggered and afterwards went away); and

Yotiga that "despues de dar el golpe se retrocedio y levanto los brazos" (after the blow was struck, he backed away and threw up his arms). The testimony of these witnesses is clear, positive, and definite and is wholly uncontradicted, excepted for the improbable story told by the accused in his own behalf, when he testified that seeing Saldivar standing outside his tent, he told him twice to go away and then stepped up to him and pushed him lightly with the back of his hand, which came in contact with the handle of Saldivar's bolo, but not with sufficient force to push him back or do him any injury. If it had been necessary to use force to compel Saldivar to leave the place, it is at least highly improbable that the accused approaching him from the front would have lightly placed theback of his open right hand on Saldivar's left side, without attempting to seize him, or to compel him to give around.

Pedro Leocampo, the only other witness called at the trial who appears to have been present when the incident occurred corroborated the testimony of the witness Dagapdap and Yotiga as to all that occurred prior to the actual infliction of the blow, which he did not see. He testified that at the time when the accused, standing in his tent, ordered the deceased to leave, he, the witness, was eating his breakfast, with his back to the accused and the deceased; that hearing the order, he

turned his head and saw the accused start toward the deceased with his arm outstretched, but that at that moment he turned away and did not see the accused actually come up to, strike or touch the deceased; that when he saw the accused approaching the deceased, the accused did not have his fist clenched, but that he could not say whether the blow was struck with the open hand or the closed fist, because at the moment when it is said the accused came up to and touched or struck the deceased, the witness's head was so turned that he could not and did not see what took place.

No evidence was introduced at the trial which in any wise tends to put in doubt the truth of the testimony of these witnesses as to the fact that they were present at the time when the place where the incident occurred; and of this fact we are satisfied that there can be no reasonable doubt, although, as frequently happens when ignorant witnesses are testifying in the courts in these Islands, their evidence is conflicting as to the precise hour by the clock when it took place.

Some attempt is made to discredit the testimony of Yotiga, because it appears from the record that in answer to certain questions on his examination-in-chief, he stated that when the blow was struck he was some hundred brazas (200 yards) away. It developed,

27

however, on examination by the trial judge, that this answer was given under the impression that the question asked was the distance from the mine to the house of the sister of the deceased, as to which considerable testimony was taken; and it is very clear from all the testimony that both these witnesses were standing within a few yards of the defendant when he struck the blow.

The testimony of Dagapdap is also criticized because, in answer to the opening questions on the examination-in-chief, he spoke of the blow inflicted as a bofetada (a slap with the open hand on the cheek), which, later on in his testimony, he changed to the word puñetazo (a blow with the fist), as a result, it is intimated, of suggestive questions by counsel for the prosecution. We do not think this criticism well founded, or that the language of the witness on which it rests sustains the inference sought to be drawn therefrom. In the first place, it must be forgotten that the witness was manifestly an ignorant man, unskilled in the use of words, and testifying in a remote province in a native dialect; and that his testimony was interpreted into the Spanish of the record by an interpreter who might well have been mistaken in selecting the precise Spanish equivalent of the word or words actually used by the witness, and whose use of Spanish throughout the record does not demonstrate such precision and nicety in the use of words as

to justify the laying of too much stress on the phrasing adopted by him in the haste of interpretation in the course of a trial: so that, in our opinion, the detailed description of the manner in which the blow was inflicted, as given by the witness without suggestion or assistance of any kind, is much more decisive as to its nature than the word by which reference to it was made. And in the second place, as appears from the Diccionario Enciclopedico de la Lengua Castellana and the Diccionario de la Lengua por la Academia Española, the word "bofetada," when used strictly, connotes not merely a blow with the open hand, but such a blow struck on the cheek or side of the face, a meaning which the whole testimony of the witness clearly discloses it was not his intention to give to whatever word he did actually make use of in referring to the act. The definition of the word "bofetada," as given in the former dictionary, is "a blow which is given on the cheek (mejilla) with the open hand," and in the latter is "a blow given with the open hand, on the side of the face (carillo) or cheek (mejilla) of another."

It has also been suggested that the testimony of the witnesses for the prosecution is inherently improbable, because, as it is said, if the blow had been struck as described by them, the injured person would necessarily have "doubled up or over," and not, as appears from their testimony,

thrown up his hands and staggered away. No expert testimony was introduced at the trial upon this point, and while it may, perhaps, be admitted that if the blow took effect in the abdominal region, common experience would justify us in expecting as a result of the blow, that the injured person would "double up or over," it must not be forgotten that the blow having been delivered over the ribs on the left side, it may as well have taken effect in the region of the heart; in the absence of expert testimony we do not think that in the event, evidence that the injured person threw up his hands and staggered away is necessarily in conflict with the evidence of the witnesses for the prosecution as to the weight of the blow and the place where it was inflicted.

We are satisfied that the evidence of record leaves no room for reasonable doubt that the defendant struck Saldivar a powerful body blow with his closed fist; and that whatever authority the defendant may have had to eject the deceased from the mining property and to use physical force to that end in case of need, the blow thus struck was far in excess of such authority, and was, therefore, unlawful, and can not be excused or justified as an exercise of necessary force in the exercise of a right. The defendant's own testimony does not indicate that there was any danger to be apprehended from Saldivar, and there is nothing in the record which

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would indicate that the defendant had reasonable ground to believe that he would offer a violent or even a substantial resistance to an attempt to expel him from the mining property.

We are satisfied also that the deceased came to his death as a result of the blow inflicted by the defendant. Two or three days prior to his death he was employed as a laborer in defendant's mine; his sister testified that on the morning of the day he died, he left her house in apparent good health and went to the mines to look for work; a short time afterwards he received a violent blow on his lower left side, a region of the body where many of the vital organs are located; and immediately thereafter, he stared up the short trail leading to his sister's house, and died as he reached the door. In the absence of evidence of any intervening cause, we think there can be no reasonable doubt that his death resulted from the blow.

Counsel for appellant suggest that death may have been the result of some cause unknown, such as a fall, an assault by robbers, or perchance a suicidal frenzy, intervening between the time when the accused was last seen starting up 200-yard trail to his sister's house, and the time when, as she testified, he died just as he reached her door on his way back from the mine; and that the accused is entitled to the benefit of

the doubt. But the doubt which must be decided in favor of an accused person in a criminal trial is a reasonable doubt, and not a mere whimsical and fanciful doubt, based upon imagined but wholly improbable possibilities, unsupported by evidence; and while we do not hold that it is absolutely and morally impossible that some other cause could have intervened to bring about the death of Saldivar, we do hold that there can be no reasonable doubt in the mind of a reasonable man that death was in fact brought about by the blow inflicted by the accused, and was not the result of some independent cause intervening during the very short period of time prior to his death, during which he was not under observation by witnesses called at the trial.

Counsel for the appellant enlarge on the fact that accepting defendant's statement that he sent the deceased away from the mines about a quarter past six, it would appear from the testimony of the sister of the deceased that about two hours may have elapsed between that time and the time when he arrived at her house. The sister fixed the time of the arrival of her brother at from 7 to 8 o'clock or possibly a little later; but she appears to have been an ignorant woman who did not know how to read the face of a clock, and it is quite clear that hers was no more than a rough estimate, based on the height of the sun, and the most that can fairly be inferred from the

testimony is that the deceased was struck early on the morning in question, and that not long afterwards on the same morning, he died at the door of his sister's house 200 yards away. But even if it be granted that two hours actually did elapsed from the time the deceased left the mines, until he reached his sister's house, this interval is not long enough to materially weaken the inference that the death resulted from the blow.

It is true that no autopsy was had on the body of the deceased, and that a medical officer called in by the accused who saw the body, but who does not appear to have examined it very closely, certified that he found no outward lesions or marks of violence; but this evidence is not sufficient to negative the existence of internal lesions, for the medical authorities inform us that death may and often does result from a blow over or near the heart or in the abdominal region, notwithstanding the fact that the blow leaves no outward mark of violence; and there is evidence in the record of the discovery on the cadaver of two suspicious black spots, one about the place where the blow was struck, and another at or near the umbilicus, though the evidence fails to disclose the precise nature of these discolorations. (Medical Jurisprudence, Taylor, 12th Am. Ed., pp. 310 and 388; Moulin's Treatise on Surgery, Hamilton, part 2, chap. 1, p.

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151; Tratado de Medicina Legal por Legran de Sulle, Vol. II, pp. 206, 207.)

It has been suggested that the deceased may have had a weak heart or some other diseased organ, and that but for such physical defect death might not have ensued from the mere force of the blow inflicted by the defendant. There is no evidence to this effect, and on the contrary there is testimony in the record that on the morning before he died he was in apparent good health; and the fact that a few days before, he was able to work in the mines, and that he came to the mines that day in search of work, renders it highly improbable that he was suffering at the time from any grave organic weakness. But however this may have been, it has been frequently and justly decided that where death results as a direct consequence of the use of illegal violence, the mere fact that the diseased or weakened condition of the injured person contributed to his death, does not relieve the illegal aggressor of criminal responsibility. (U. S. vs. Luciano, 2 Phil. Rep., 96; U. S. vs. Montes, 6 Phil. Rep., 443; see also decisions of supreme court of Spain, March 10, 1871, and June 26, 1980.)

Counsel for appellant also contend that even if it be granted that in unlawfully exercising force upon the person of the deceased, the appellant

caused for contributed to his death, nevertheless he should at most be convicted of homicidio por imprudencia temeraria (homicide as a result of reckless negligence), because, manifestly, the unlawful act was not committed with the intent to kill, and as counsel contend, the striking of the blow by the appellant was not an act adapted, or likely (idóneo) to inflict a death wound under ordinary circumstances, or reasonably calculated so to do. In support of this contention counsel cite decisions of the supreme court of Spain of November 9, 1885, February 10, 1876, July 5, 1888, and July 12, 1890, and appears to rely especially on the former decision wherein sentence of homicidio por imprudencia temeria was imposed, the court holding "que es condición esencial del delito de homicidio, que el hecho material de que resulte sea impulsado por voluntad libre encaminada por acto idóneo a causar la muerte ó algun mal fisico que por consecuencia natural la produzca."

In the case, however, it was proven, and the court found that not only did the defendant not intend to kill the deceased but also that he did not intend to do him any physical injury whatever; but in the case at bar the evidence conclusively establishes the voluntary, intentional, and unlawful infliction by the accused of a severe blow on the person of the deceased; and while it is true that the accused does not appear to have

intended to take the life of his victim, there can no doubt that in thus striking the deceased, he intended to do him some injury, at least to the extent of inflicting some degree of physical pain upon him, and he is therefore, criminally responsible for the natural, even if unexpected results of his act, under the provisions of article 1 of the Penal Code, which prescribes that —

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

In such cases the law in these Islands does not excuse one from liability for the natural consequences of hi illegal acts merely because he did not intend to produce such consequences, but it does take that fact into consideration as an extenuating circumstance, as did the trial judge in this case.

What has been said sufficiently disposes of all errors assigned by counsel for appellant, except certain alleged errors of procedure in the court below which we do not think it necessary to discuss, because even if it be admitted that such errors were committed, they do not appear to have in any way wise prejudiced the substantial rights of the defendant.

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The judgment of conviction and the sentence imposed by the trial court be and are hereby affirmed, with the costs of this instance against the appellant. So ordered.

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

Separate Opinions

MORELAND, J., dissenting:

The facts in this case, as claimed by the Government, are as follows:

The defendant, James L. Brobst, and another American, named Mann, were engaged in working a mine belonging to them, located in the municipality of Masbate, where they gave employment to a number of native laborers. Mann discharged one of these laborers, named Simeon Saldivar, ejected him forcibly from the premises and warned him not to come back, and told the defendant not to employ him again or permit him to be upon the premises because he was a thief and a disturbing element with the other laborers. A few days afterwards, at about 6 o'clock in the morning on or about the 10th of July, 1907, Saldivar, in company with three of four others, went to the mine ostensibly to look for work. The defendant, who at that time was dressing himself inside his tent, which was erected on the mining property, catching sight of

Saldivar, ordered him off the place. Saldivar made no move to leave, and, although the order was repeated, still did not leave, although he said and did nothing whatever; whereupon, as claimed by the Government, the defendant became enraged, took three steps towards Saldivar and struck him a powerful blow with his fist on the left side, just over the lower ribs. Saldivar turned around, without saying a word, and went in the direction of his sister's house, which stood about 200 yards away and about 100 feet up the side of a hill. He was not seen by anybody after starting toward the house. About two hours later, slightly more or less, he came to the front door of the house in dying condition. He died just after being carried into the house and was buried two or three days later.

The trial court found the defendant guilty of the crime homicide, marked with the extenuating circumstances defined in subsections 3 and 7 article 9 of the Penal Code in that the defendant had no intention of committing so grave an injury as that which he inflicted and that he struck the blow under such powerful excitement as would naturally produce entire loss of reason and self-control. Sentence of six years and one day of prision mayor was imposed, and from this sentence the defendant appealed to this court.

The claim of the defendant is that was not enraged, that he did not strike Saldivar, the decent, a blow with his fist or a blow in any other manner, but that he simply stepped up to the decedent, put his open hand against him and pushed him gently backwards.

To secure a conviction it was necessary for the Government to prove, first, that the defendant unlawfully injured the decent, and, second, that the decedent died because of that injury.

In this case the death is admitted. The cause of death is in dispute. The Government seeks to prove the cause of death by circumstantial evidence. The prosecution asserts that it has proved by direct evidence a blow or push delivered by the defendant to the person of the decedent, and, the subsequent death being admitted, asks the court to make the deduction that the one resulted from the other. No autopsy was had. No examination of the body, either before or after death, which merits the slightest consideration, was made by the prosecution. No expert testimony worthy of the name was produced by the Government as to the cause of death. Such as was given is not wholly valueless, but positively ridiculous.

The prosecution claims to have proved by reliable evidence, and rest its case wholly upon that proposition, that the defendant administered

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to the decedent a powerful blow with the closed fist in the lower left side; that the death of decedent occurred very soon thereafter, and that, therefore, the irresistible inference is that the injury caused the death. The claim of a proper conviction rests upon the proposition laid down generally by the authorities that where there has been inflicted an injury sufficient to produce death, followed by the demise of the injured person, the presumption arises that the injury was the cause of death, and, if no other cause is suggested by the evidence, the conclusion becomes practically irresistible and need not be corroborated by expert testimony. It should be noted here, however, in order to avoid confusion, that if there is no injury sufficient to produce death, then that presumption does not arise and no conclusion as to the cause of death can be indulged without additional proof.

The first question to be decided in this case is, Was the blow one which, in the ordinary acceptation of the term, was sufficient to produce death? If it was, and that fact is established by the evidence beyond a reasonable doubt, then the conviction of the defendant might possibly be sustained — a proposition not necessary to decide under my view of the case. If it was not, then, there being an absolute failure of proof as to the cause of death, the judgment of conviction must reversed.

The resolution of this question depends, in this particular case, wholly upon the nature and character of the blow delivered.

After a very careful and through examination of the proof adduced at the trial, I can not bring myself to believe that the prosecution has established satisfactorily that the blow complained of was sufficient to produce death.

I am not convinced that the claim of the Government that the alleged blow was delivered with the clenched hand, or fist, has been sustained. Three witnesses were sworn on behalf of the Government to the question of the blow alleged to have been delivered by the defendant to the decedent. One of them, Pedro Leocampo, testified flatly and directly that the push or blow (he does not designate by express words which it was) was administered with the open hand. At page 19 and following pages of the evidence he declares that, at the beginning of the incident in question between the defendant and the decedent, he had his back toward the participants, eating his breakfast; that he heard the defendant say to the decedent, "Fuera, go ahead, vamus," and immediately turning his head he saw the defendant with his open hand extending toward and touching the body of the decedent; that he saw decedent then turn and walk away. Later, in replying to questions put by

the trial judge, he said he was not quite sure whether the open hand of the defendant actually touched decedent's body or not. It is unquestionable, however, that the movement of the defendant's hand which he saw was the blow or push which it is claimed caused the fatal injury; because it is admitted by all, and the evidence also on that point is undisputed, that what the witness saw was at least the critical part of the incident — the delivery of the alleged blow. Moreover, it is conceded that the alleged blow was not delivered until after the defendant had uttered the words referred to and had stepped forward at least one pace: and it is nowhere asserted or claimed by anybody that the defendant extended his hand toward the decedent more than one or that more than one blow was given. It is evident, therefore, that what the witness saw was the delivery of the very blow or push which the prosecution claims was the cause of death. If can not well be imagined, in view of the testimony given by this witness, how the Government could fairly claim otherwise. These conclusions are, I am convinced, fully supported by the testimony as it is found in the record. In answer to a question put by the fiscal on direct examination he said:

T. Que estuve de espada con ellos y el americano no ha dicho nada y momentos despues dijo: "fuera," "go ahead," le vi que tenia

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la mano abierta y esta mano toco el cuerpo de Simeon, pero no he visto como estaba.

After cross-examination the court questioned the witness as follows:

J. ¿Oyo Vd. ruido de algun golpe cuando el acusado Brobst dijo "fuera de aqui?" — T. No he oido el golpe.

J. En el momento de decir "fuera de aqui," ¿a que distancia estaba Simeon del acusado? — T. A distancia de mas una vara.

J. De modo que en aquel momento ¿estaba el occiso Simeon al alcance del acusado Brobst? — T. Sí señor.

J. ¿Y vio Vd. al acusado empujar al occiso Simeon? — T. No puedo decir si el acusado empujo a Simeon.

J. ¿Vio Vd. a Simeon Saldivar retroceder en el momento de decir el acusado "fuera de aqui?" — T. He visto retroceder y dar las espaldas.

J. Cuando hizo el ademan de empujarle, ¿como tenia el puno — cerrado o abierto? — T. Tenia la mano abierta.

J. ¿En que forma? — T. Tenia abierta la mano.

The testimony of this witness clearly discloses the fact that he saw the critical part of the event,

that is, the part wherein the hand of the defendant touched the body of the decedent in the alleged blow. At that moment the hand of the defendant was open.

The witness Miguel Yotiga, another witness called by the Government, testified on page 2, 3, and 4 of the record that during the month of July, 1907, he was at the place where the dispute in question occurred. Then follow these questions and answers, among others:

F. ¿Sabe Vd. si durante el mes de Julio de 1907 que estuvo Vd. trabajando alli ha occurrido alguna cosa extraordinaria? — T. Si senor.

F. ¿Que es? — T. El haber abofeteado el americano a un tao.

F. ¿Estaba Vd. presente? — T. Si, senor.

F. Relate Vd. fielmente en este juzgado todo lo que Vd. ha presenciado desde el principio hasta el fin. — T. Yo he sido asalariado por el para acarrear arroz. Cuando llegue en las minas era ya de noche, y al requerir nuestro salario nos dijo Cristóbal que nos dormiriamos alli porque el americano estaba ya durmiendo y que Vds. pueden salir muy temprano por la mañana. Se nos dio el salario por dijo que quedaramos para desayunar. Despues de desayunar llegaron tambien 4 hombres; el cocinero me dijo: "Miguel

presente Vd. a estos 4 hombres por si el Sr. Brobst los quiere emplear en el trabajo." Los 4 individuos fueron uno tras otro. Yo dije al Sr. Brobst si aun pueden trabajar esos 4 hombres. El Sr. Brobst se levanto para ver a aquellos 4 hombres, al ultimo de los cuales le pego una bofetada, y yo habia visto la bofetada que le dio en la cintura en el bolo colocado en la cintura, e inmediamente el hombre se dirigio a la casa de su hermana.

F. ¿A que distancia estaba Vda. de Mr. Brobst cuando dio el puñetazo a aquel individuo? — T. Una distancia de 10 metros.

F. ¿Sabe Vd. por que el acusado habia dado puñetazo a aquel? — T. Que yo le he visto pegar con bofetón, pero que no se el motivo.

F. ¿Cruzaron entre ellos alguna disputa o rina antes que el acusado haya dado el golpe? — T. No se nada, unicamente he visto que cuando llegaba Mr. Brobst dio el puñetazo.

Later on the witness says, in reply to leading questions, that the blow was struck with the closed hand and was a heavy one.

It will be observed from this testimony that the witness, in making his statement in narrative form and without the influence which particular words in questions frequently exerts on simple-minded

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witnesses, used the words abofeteado and bofetada in speaking of the kind blow which the defendant administered to the decedent. The word bofetada, as well as abofeteado, means a blow with the open hand. It does not mean a severe blow, and particularly not a blow with the fist or closed hand. It is much nearer in character to a push than it is to a puñetazo, which is always a blow with the fist. It is a light slap rather than a blow. It is the diminutive of the word bofetón; that is to say, if it can be called a blow at all, it is a gentle blow than would be signified if the wordbofetón were use. All of the dictionaries say that puñetazo is a blow with the clenched hand, or fist, and that bofetada is a blow with the open hand. The dictionaries also say, in giving the definition of bofetón, that is the aumentativo de bofetada. In his testimony on page 2, 3, and 4, the witness continually and persistently used the word bofetada in describing the blow given by the defendant to the decedent until the word puñetazo was suggested to him or put into his mouth, as it were, by the questions of the fiscal. Then the witness himself picked up the word and thereafter used it. No amount or species of word torture can make the word "slap" mean a blow with the fist. No more can bofetada be made to mean puñetazo. A witness who, in describing the same blow, first uses the word bofetada and then, after

suggestion, changes it to puñetazo, provokes a contradiction in his testimony, which, if not explained, militates strongly against his credibility. This is especially so when the change in the word goes to the very essence of the cause of action, as it does in this case. This whole case depends upon the whether the word puñetazo or the word bofetada correctly describes the event out of which this action grows:

It is but repeating the general experience of those familiar with the trial of causes to say that suggestions to a witness by the form and specific wording of a question are of very frequent occurrence. The suggestion produces the same result whether willfully made and received or innocently indulged, as was undoubtedly the case here on the part of the fiscal. In the case of an ignorant or simple-minded witness, his vocabulary being limited, he catches very readily, as a rule, the words used by the interrogator and, in his answers, uses the exact words in which the question is propounded, without, perhaps, being in the least conscious that the words he assumes do not exactly, sometimes not at all closely, represent what he really wants to express. These suggestions display one of the vices found by the courts in what are termed "leading questions," and furnish a reason for the rule uniformly

enforced in trial courts that they will not be permitted.

The questions and answers already quoted illustrate this voice forcibly as to the use by the witness Yotiga of the words bofetada and puñetazo. On page 5 of the evidence occurs another illustration. There the fact sought to be elicited was whether the blow was gentle or severe. "F. ¿Hizo despacio o fuerte? — T. Fuerte." On pages 12, 19, and 24 the following occurs:

F. ¿Donde toco — directamente en el cuerpo o en el bolo? — T. Dio en el bolo.

F. ¿En que parte del bolo — en la vaina o en el puno? — T. En el puno del bolo.

F. ¿Era fuerte el puñetazo ó flojo? — T. Fuerte.

F. Cuando el acusado pego a Simeon Saldivar, ¿estaba riendose o estaba furioso? — T. Furioso.

F. ¿Tenia cerrado el puno o abierto la mano? — T. Cerrado la mano.

In these illustrations, it will be observed, the witness is presented by the questions with only two words to make use of in answering — one word the very extreme in one direction and other word the very extreme in the other. The ignorant

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or simple-minded witness whose vocabulary is extremely limited, who is unused to court proceedings, is strongly tempted, and in many instances is virtually forced, to accept one word or the other and thereby assume one extreme or the other in making his answers, although the word made use of may not within many degrees express his real meaning. All of these questions were leading and suggestive, and, judging from the testimony given anterior to those questions, especially by the witness Yotiga, led to very marked contradictions of, or, at least, changes in, the evidence as previously presented.

The third and last witness for the Government who testified as to the blow was Fermin Dagapdap. In describing the blow this witness from the first used the word puñetazo. This witness, however, stated that he was at the time of the occurrence about 100 brazas (600 feet) from the participants. Later in his testimony he attempts to claim that he gave 100 brazas as the distance which the decedent was from his brother's house at the time of the occurrence. This, however, is very difficult to believe in view of the evidence which he gave, as shown on page 25, which follows:

F. ¿A qué distancia estaba Vd. de los dos cuando dio el puñetazo? — T. Unas 100 brazas.

F. ¿Vd. estaba á 100 brazas de distancia? — T. Sí, señor.

F. Indique Vd. aqui la distancia aproximadamente de las 100 brazas que Vd. dice. — T. Aquella casa de techo de hierro.

F. ¿Esa es la distancia donde Vd. estaba cuando dio el puñetazo a Simeon Saldivar? — T. Sí, señor.

If, after all that questioning as to the distance he was away from the scene of the occurrence, and if, after all the effort which the fiscal evidently made to induce in him a proper comprehension of the nature of the question, the witness did not then understand, he displayed qualities, or the lack of them, which justly lead to the conclusion that his testimony ought not to be given any weight whatever, especially where it is in conflict with the testimony of any witness more reliable. Moreover, his manifest evasions on cross-examination materially weaken any claim which may be made in favor of his credibility.

These witnesses for the Government are in conflict in other particulars. Yotiga declared that the incident occurred at eight o'clock in the morning. Yotiga declared that it happened while the workmen were eating breakfast; Dagapdap averred that it took place after breakfast and while the men were working.

It seems to me, therefore, that the direct testimony adduced by the Government to prove that the defendant delivered against the body of a decedent a blow with fist, is conspicuously weak, particularly when we take into consideration that one of the Government witnesses flatly contradicts the other two in every important point; and that testimony, taken in connection with all the circumstances surrounding and accompanying the incident, seems rather to support the testimony and claim of the defendant that he did not strike the decedent with his fist but gave him a push with his open hand.

The following are the said circumstances, present at the very time the act complained of was committed, which go to prove that the blow, alleged to have been delivered against the body of the decedent, was not a blow at all in the real sense of the word and was wholly insufficient ordinarily speaking, to cause any injury whatever;

The decedent at the time showed absolutely no signs of having been injured in the slightest degree.

(a) The three witnesses for the prosecution above referred to, Yotiga, Dagapdap and Leocampo, if their testimony is to be believed, unite in declaring that they were looking the decedent full in the face when the alleged blow

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was struck and that they saw thereon nothing but a perfectly natural expression. There is not the slightest evidence to show that the countenance of the decedent betrayed even the faintest appearance of pain, distress or discomfort at the time the blow was delivered or at any time thereafter so long as he was observed.

(b) Nobody heard any blow struck. It is conceded by every witness for the Government that there was no sound of a blow. There were at the place where the incident occurred about twenty men, all of them as close to the participants as were the three witnesses for the Government and yet, so far as can be gathered, only three of the twenty the sound of a blow. In fact, only three of the twenty (the witnesses for the Government) knew that anything unusual had happened at all.

(c) The decedent gave no cry of pain, made no exclamation, uttered no sound. This is the uncontradicted proof.

(d) The decedent did not reel or stagger backward, forward or sideways, nor did he lose his equilibrium in any way.

This is established by uncontradicted proof. Every witness for the Government declares that after the delivery of the alleged blow the decedent remained in a perfectly upright attitude and in a natural position; and that immediately

after receiving the blow he turned and walked away.

One of the witnesses, after being sharply questioned by the fiscal, stated that on the delivery of the blow the decedent stepped back, threw up his arms and walked away. The following is his testimony:

El Sr. Brobst . . . le pego una bofetada y yo habia visto la bofetada le dio en la cintura en el bolo colocado en la cintura é inmediatamente el hombre se dirigió á la casa de su hermana.

F. ¿En que posicion se quedo aquel individuo en el miso momento de recibir el golpe? — T. Que inmediatamente de haber recibido el puñetazo se marcho.

F. Yo le pregunto á Vd. en el miso momento de haber dado el puñetazo.—T. Que despues de dar el golpe se retrocedio y levanto los brazos y en seguida se marcho.

It will be observed, from the evidence quoted, that the witness testified at first that the decedent did nothing on receiving the blow except to turn and walk away. This testimony the witness repeats in response to a second question of the fiscal. The third question as to the same point was evidently very sharply put by the fiscal, and that effort drew from the witness the additional

statement, quite inconsistent with his two previous ones, that the decedent stepped back and threw up his arms. Neither of the other two witnesses for the Government saw this latter manifestation on the part of the decedent. One of them, Leocampo, testifies directly that no such thing happened, and other, Dagapdap, although one of those who claimed to have been an eyewitness of the whole affair and who assumed to describe the whole incident in detail, fails to mention the very important fact, if it is a fact, that the decedent threw up his arms. He testified that the decedent simply whirled around and walk away.

The claim of the prosecution that the decedent staggered at the time of the alleged blow is based upon the translation of "dió vueltas." One of the Government's witnesses says that on the delivery of the blow the decedent "dió vueltas y se marchó." So far as my researches go, no such interpretation can be given those words. They do not mean that he "staggered." They mean simply that he turned or whirled around. This might follow a blow or a push. No other witness uses these same words; but the other two witnesses for the Government, in describing the same act of the decedent, used words which, it may fairly be assumed, in order to maintain as much harmony as possible in the testimony of the Government's witnesses, were intended to mean

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the same thing. Such words are "se dirigió á la casa," and "volví la cara y se marchó el difunto." These words were used by the other two Government witnesses in describing the very same act to which the other Government witness applied the description "dió vueltas." Those words can not possibly be construed to mean that the decedent staggered.

(e) The decedent, according to the testimony of the prosecution, did not attempt to ward off, dodge or escape the blow in any way.

He had abundant opportunity to do so. It is nowhere denied, but always admitted, that the defendant twice ordered the decedent to leave the place and after delivering the order the second time advanced toward him a pace or two. The decedent was fully warned. Yet the witnesses of the prosecution claim that, up to the time the blow touched him, he made no move whatever. It is unbelievable that the decedent would permit the defendant to walk up to him, after due warning, and plant a powerful blow in his abdomen without any effort to dodge or escape and without the slightest effort to ward off the blow by movement of body, hand, or arm. The throwing of the arms down to protect the abdomen in such a case is involuntary and almost inevitable; and the fact that he did not do

so points strongly to the conclusion that he was not struck as claimed.

(f) the body of decedent exhibited no external sign of injury after death.

Two witnesses were sworn by the prosecution as to signs of injury upon the body of the decedent. One, the father of decedent, laborer, testified that at 4 o'clock of the afternoon of the day after the alleged injury (the alleged injury occurred at about 6 a. m.) he examined the body of decedent and found a black spot about the size of a peso on the left side. The other witness, Alejandro Santiago, 70 years, farmer and herbalist, declared that he examined the body, he does not remember when, and found a black spot on the ribs (he does not remember on which side of the body) and another one on the navel. The cause of these spots, if they really existed, is pure speculation. Certainly one blow could not make both. They may have been caused by the decedent falling or by handling the body at the time or of subsequent to death, or by ecchymosis. No one knows. Certain it is that an examination of the body by a licensed physician, Hans Hoch, made the day of the alleged injury, some hours thereafter, disclosed, so the physician testified, absolutely no external signs of injury is not conclusive that there was no injury, still such signs are usual in cases of this

character and their absence is significant and important.

The weight of the testimony produced seems, therefore, to be that there were no external signs of injury upon the body of decedent — certainly none that were fairly traceable to the blow, even if delivered in the manner and with the force claimed by the Government.

It seems to me, therefore, that there is an essential and fatal conflict in the evidence of the prosecution. The prosecution claims (and portions of the direct testimony of some of its witnesses tend to prove) that the defendant gave the decedent a powerful blow with his fist, full in the left side; on the other hand, other portions of the testimony are utterly and destructively contradictory to that claim. It is contrary to the universal experience of life to assert that a man, receiving in his lower left side a powerful blow with the fist, a blow which, it is claimed, was sufficiently forcible to cause death within a short time, can maintain an erect and natural posture and exhibit absolutely no signs of pain. Experience also demonstrates that it is little short of the impossible that one receiving such a blow would throw his arms up. I do not believe a case can be cited where that has occurred. It is the experience of mankind that under such circumstances the person always throws his

37

arms down. Such a blow in or about the abdomen or in the lower ribs produces such a shock to the nervous system, causes such a contraction of all the muscles thereabouts, induces such a difficulty of respiration, and such great pain, that the person so struck is not only wholly unable to throw his arms up but he is absolutely incapable of maintaining the body in an erect position. He involuntarily and inevitably throws the arms down over the abdomen and bends the body forward at the hips. In other words, using a phrase which almost universal experience has taught accurately describes the position necessarily assumed by one receiving such a blow, he would "double up like a jackknife." The claim that the blow was a powerful one delivered with the fist is so utterly inconsistent with the appearance and conduct of the decedent at the time of the assault and subsequent thereto as to lead almost necessarily to the conclusion that no such blows was struck. Granting such a blow, it would be little short of the impossible, it certainly would be most extraordinary, for the decedent to exhibit no signs of pain, maintain an erect and natural position, preserve perfectly his equilibrium with the exception of stepping backward a little, turn in the ordinary way and walk off the premises at his usual and natural gait and with his usual and natural carriage. The entire absence of symptoms or evidence of injury at the time of the

act complained of is, in my judgment, of the very gravest importance. It speaks louder and stronger and clearer than all the other evidence in the case as to whether or not the decedent was actually injured at that time.

On the other hand, the theory and claim of the defendant, that he simply stepped forward and pushed the decedent backward lightly with the open hand, after ordering him to leave, explains fully and satisfactorily every fact and every circumstance above mentioned as being so utterly inconsistent with the claim of the prosecution.

(1) It explains why the decedent did not try to dodge or escape or protect himself by movement of the body, or by using the hands and arms to defend himself from the assault of this enraged and furious man. There was no violence from which he needed to protect himself.

(2) It is explains why there was no cry of pain, no appearance of distress, no reeling, staggering, falling, doubling up or other exhibition or sign of injury. It explains why he did not at once drop to the ground, as he naturally and almost inevitably wound on receiving a blow such as is sought to be established by the prosecution. There was no violence or force to cause any of these things.

(3) It explains why decedent was able to walk away promptly at his usual gait and with his customary carriage.

(4) It explains why there was no satisfactory proof of marks of violence or external signs of injury on the body of the decedent.

(5) It explains why no body of all who were present heard the sound of a blow, not even the witnesses for the prosecution.

(6) It explains why, among the twenty persons there present, only a very small per cent knew that anything unusual had taken place.

(7) It explains why the witness Yotiga first used the word "bofetada" instead of puñetazo" or "golpe."

(8) It explains why the witnesses Leocampo testified that the defendant's hand was open at the very time of its contact with decedent's person.

(9) It explains the entire lack of reason or motive on the part of defendant inducing him to inflict on the decedent punishment as severe as would follow such a blow.

It seems, therefore, to be demonstrated from the evidence that the prosecution has not only not sufficiently substantiated its claim that the blow

38

was delivered with the fist, but has failed as well to show that any blow, in the real sense of that term, was struck. Rather the strong tendency of the proof, taken as a whole, together with all the circumstances is to support the contention of the defendant that he simply pushed the decedent back with the open hand. That being so, it is perfectly apparent that such an act was utterly insufficient to produce death.

As stated at the outset, the Government rests its case wholly upon the proposition laid down by the authorities that where there has been inflicted an injury sufficient to produce death, followed by the demise of the injured person, the presumption arises that the injury was the cause of death, and if no other cause is suggested by the evidence, the conclusion becomes practically irresistible and need not be corroborated by expert testimony. But it must always be remembered that the basis of and the reason for that presumption is the injury sufficient to produce death. If the injury is not one capable of producing death, ordinarily speaking, then no such presumption can possibly arise. The law invariably requires that there be established by clearest proof the connection between the injury and the death, making the one the result of the other. Where the injury is one capable of producing death that connection of cause and effect is established between the injury and

death by theinherent nature of the act — its sufficiency to produce death. But where the act is one not sufficient to produce death, then the relation of cause and effect is not established for the reason that the act fails of the very quality from which the presumption of cause and effect springs, namely, its capability of producing death. In such a case, when the Government has proved simply the injury and death, it has done nothing. The connection between the two is wholly lacking. It is indispensable to a conviction in such case that the Government prove the cause of death; and that cause must be proved in addition to the fact of inquiry. This the Government has wholly failed to do. No effort was made to do so. The Government rested its case entirely upon the presumption, which it assumed arose by reason of the inquiry and death, to establish the relation of cause and effect between them. No autopsy was held. No one knows the cause of death. The incident occurred at about 6 clock a. m. The decedent died at about 8 o'clock the same morning. He left the scene of the event instantly. He was not seen again by anybody, so far as the evidence shows, until the very moment of his death. Where he was, what he did, and what happened to him during the two hours intervening, the evidence does not disclose.

It being fairly established by the evidence that the defendant simply pushed the decedent, the remaining question is simple. The land and premises were the event transpired belonged to the defendant. The decedent, according to the evidence, was known to the defendant as a thief and as a marker of mischief among the workers in the mines. Only two days before the event from which this suit arose defendant had seen the decedent forcibly ejected from these the same premises by one Mann, a partner of defendant; and the defendant was at the time advised by Mann that the decedent was a mischief-maker and a thief and should not be allowed about the mines. The defendant had a right to protect his property from invasion, particularly by such person as he believed decedent to be; and if, being upon the premises, defendant refused to leave when given fair warning, the defendant had a right to eject him therefrom using no more force then was necessary to that end. (Cooley, Torts, 1st Ed., 167; McCarty vs. Fremont, 23 Cal., 196; Woodman vs. Howell, 45 III., 367; Bucher vs. Parmelee, 9 Vt., 352; People vs. Payne, 8 Cal., 341; People vs. Batchelder, 27 Cal., 69.)

That he did not use more force than was necessary is established by the evidence as shown by the preceding discussion.

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Wills, on Circumstantial Evidence, says on page 291:

(3) In the proof of criminal homicide the true cause of death must be clearly established; and the possibility of accounting for the event by self-inflicted violence, accident of natural cause, excluded; and only when it has been proven that no other hypothesis will explain all the conditions of the case can it be safely and justly concluded that it has been caused by intentional injury. But, in accordance with the principles which govern the proof of every other element of the corpus delicti, it is not necessary that the cause of death should be verified by direct and positive evidence; it is sufficient if it be proven by circumstantial evidence, which produces a moral conviction in the minds of the jury, equivalent to that which is the result of positive and direct to that which is the result of positive and direct evidence.

In the People vs. Bennett (49 N. Y., 144) the court said:

In determining a question of fact from circumstantial evidence, there are two general rules to be observed: (1) The hypothesis of delinquency or guilt should flow naturally from the facts proved, and be consistent with them all. (2) The evidence must be such as to exclude, to moral certainty, every hypothesis but that of his

guilt of the offense imputed to him; or in other words, the facts proved must all be consistent with the point to his guilt not only, but they must be inconsistent with his innocence.

On an indictment for murder, the prosecutor must prove that the blows caused the death; but, if he proves that the blows were given by dangerous weapon — were followed byinsensibility or other alarming symptoms, and soon afterward by death; this is sufficient to impose it on the accused, to show that the death was occasioned by some other cause. (U. S. vs.Wilterberger, Fed. Cas. No. 16738.)

On trial for murder, the State's failure to prove by what means the deceased came to his death is fatal to its case. (Cole vs. The State, 59 Ark., 50.)

In order that a defendant may be properly convicted by circumstantial evidence, all the circumstances proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and, at the same time, inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis except that of guilt.

(12 Cyc., 488; U. S. vs. Reyes, 3 Phil. Rep., 3; People vs. Ward, 105 Cal., 335; Carlton vs. The People, 150 III., 181; State vs. Vinson, 37 La. Ann., 792; Commonwealth vs. Costley, 188

Mass., 1; People vs. Aikin, 66 Mich., 460; U. S. vs. Reder, 69 Fed. Rep., 965.)

The judgment of conviction should be reversed, the defendant declared not guilty and his discharge from custody ordered.

Johnson, J., concurs.

44. [G.R. No. 10037. December 23, 1914. ]

THE UNITED STATES, Plaintiff-Appellee, v. MAXIM0 MALLARI, Defendant-Appellant. 

Ledesma, Lim & Irureta Goyena for Appellant. 

Solicitor-General Corpus for Appellee. 

SYLLABUS

1. CRIMINAL LAW; PLEA OF EXEMPTION FROM RESPONSIBILITY. — The plea or circumstance of exemption from criminal responsibility must be duly proven in the case in the same way as the principal fact, in order to free the perpetrator of the crime from responsibility therefor. 

2. ID.; RESPONSIBILITY FOR CONSEQUENCES OF ACTS. — The proven

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perpetrator of a crime is directly responsible for all the consequences of his criminal act, and therefore for the death that occurred five days after the victim had received the wound that caused it. 

3. ID.; DYING DECLARATIONS; GROUNDS OF ADMISSIBILITY. — The credibility of statements made by a severely wounded person to a justice of the peace in the preliminary investigation rests not only on the serious situation resulting from the wound he has received but also on his physical and mental condition, which, given the depressed state of his mind, has induced the profound conviction that his life is actually slipping away, and that he is in positive and imminent danger of dying sooner or later as a consequence of his serious wound; nor is the force of such declaration affected by the circumstance that he did not die until many hours or days afterwards, for he finally did die from the wound, whose gravity did not diminish from the time he made his declaration until the hour of his death. (Moore v. State, 96 Tenn., 209.) 

4. ID.; ID.; ID. — Notwithstanding the fact that hearsay evidence is not admissible at a trial, the statements made by an individual who is seriously wounded, at a moment when he was dying, being convinced that there was no hope of recovery, constitute per se at least a grave,

conclusive and decisive indication of the culpability of the persons designated by the dying man, inasmuch as it must be assumed that he, being in so precarious a condition, spoke truthfully, and that he was not induced by a desire to tell a lie and to injure an innocent person. (U. S. v. Castellon, 12 Phil. Rep., 160.)

D E C I S I O N

TORRES, J. :

This case has been brought up on appeal filed by the defendant from the judgment dated April 22, 1914, whereby the Honorable Julio Llorente, judge, sentenced him to the penalty of twelve years and one day of reclusion temporal, accessories, the payment of an indemnity of P1,000 to the heirs of the deceased, and the costs. 

On the morning of September 25, 1913, in the barrio of Batasan, municipality of Macabebe,

Province of Pampanga, before going to his work, the defendant Maximo Mallari went to the house of the married couple, Vicente Sunga and Canuta Flores, and from the shed outside asked Vicente Sunga to cure his wife of a sickness from which she had been suffering for several days, and which he thought was due to enchantment on the part of the said Vicente. As the latter refused, averring that he was not a wizard and that he had not caused the illness of defendant’s wife, the former became enraged and insulted the said spouses. Threatening to kill them, he ascended the stairway carrying in his hand a thin, sharp bolo. At his wife’s suggestion Vicente Sunga tried to get out to report the matter to the teniente of the barrio, who lived at some paces from their house, but as he met the defendant on the stairway, he immediately went back inside and jumped out of a window. He was straightway pursued by the defendant and on arriving almost in front of the house of the teniente saw that the defendant was following closely behind him. He therefore turned to face his pursuer and defend himself as well as he could with his hands. Thereupon the defendant with a single slash of the bolo wounded Vicente Sunga in the abdomen, so that his intestines protruded therefrom. In this condition the victim sat down, endeavoring with his hands to keep his intestines from falling out, while his assailant took to flight. 

41

The justice of the peace of Macabebe arrived on the scene a few moments later and in his presence the wounded man declared that his assailant was Mallari, who had been in his house, and who had inflicted the serious wound he had in the abdomen. As a consequence of this wound he died three days later. 

An autopsy was held on the corpse by the physician who is president of the municipal board of health of Macabebe, and as a result of the examination made, it appeared that the deceased had received an incised wound in the epigastric region, which penetrated the gastrocolic epiploon, the middle part of the transverse colon and the rectoabdominal muscles, and which had caused severe peritonitis, the entire length of both intestines having become gangrened with sanious discharges. This wound was necessarily fatal, especially in view of the scarcity of antiseptics available in the towns of the provinces. 

The facts set forth appear to have been duly proven in the case and constitute the crime of homicide, provided for and penalized in article 404 of the Penal Code, for the reason that the defendant appeared at the house of deceased with the demand that the latter treat his wife, whom he believed to be bewitched by the artifices of the deceased. As the latter refused to

do so, saying that he was not a wizard, the defendant Mallari insulted the Sunga spouses, threatened them with death and straightway went up into the house of the deceased with a bolo in his hand. When the deceased saw this he immediately leaped out of the window in flight but the defendant pursued him and upon coming up with him in front of the house of the teniente of the barrio, to whom he was going to complain, struck him a blow in the abdomen with the bolo, inflicting a serious and fatal wound that caused death on the third day thereafter. 

Defendant declared that on the morning of the occurrence his wife, who was ill, told him before going to work to. stop in at Isidro Sunga’s house and ask the latter’s wife to treat her, for it was reported that she was a witch; that when he reached the yard of Isidro Sunga’s house he asked the latter’s son, Silvino Sunga, for his mother; that at Silvino’s invitation he entered the yard and Isidro Sunga asked him from the window what he wanted and invited him to come in; but that he refused to enter, saying that he could tell what he wanted from outside; that thereupon Isidro Sunga’s wife appeared at the window and upon seeing him called to her children, saying that a bad man had come. Then they began to insult him, and when he tried to get away, Vicente Sunga, Silvino Sunga, Isidro Sunga, and Florentino Sunga, armed with long

bolos, pursued him. At that instant Vicente Sunga, who was foremost among them, struck him a blow with a pocket-knife on one of his rumps. Upon feeling the wound he turned and slashed his assailant in the belly with his bolo, and then forthwith took to flight, for the others continued to pursue him. Defendant attempts to show by this testimony that he was through necessity defending himself from the unlawful assault made upon him by the deceased. 

But it appears fully proven in the case that the defendant Mallari did not go to Isidro Sunga’s house to perform his wife’s errand but that he went directly to another house, in which Vicente Sunga lived apart, to compel the latter to cure his sick wife; that when the defendant pursued him in the direction of the house of the teniente of the barrio, Sunga’s wife, Canuta Flores, and her brother, Dalmacio Flores, came out of the house unarmed and saw the assault; that upon approaching Sunga, whom they found seated on the ground with a wound in his belly, they rendered him aid. At that time the defendant, who had assaulted him, was no longer there, as he had straightway taken to flight. The agents of the authorities and the justice of the peace who went to the place of the assault found no weapon in possession of the deceased, or of his wife and his brother-in-law. 

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Isidro Sunga, who lived in another house with Silvino Sunga and Florentino Sunga, was not in his house at the time of the occurrence and none of these persons saw the affair, so they could not have pursued the defendant with weapons, as he affirms. The two neighbors, Bernardo Saual and Esteban Yama, who lived in houses adjoining the deceased’s, stated that when they heard the cries of Canuta Flores calling for help they left their houses and thereupon saw the defendant pursuing the deceased Vicente Sunga; that upon arriving in front of the house of the teniente of the barrio, at the moment when Sunga turned toward the defendant, who was pursuing him, said defendant slashed him in the belly and straightway took to flight. They did not at that time see Sunga carrying any weapon, or that he attacked his assailant before being wounded in the belly. 

The witnesses for the defense, Bonifacio Ignacio and Diego Yabut, assert that they saw four armed men pursuing the defendant on that occasion, the foremost of whom was the deceased, who was carrying a pocket-knife, while the others were provided with bolos, wherefore the defendant, upon being wounded in the right rump by the deceased, defended himself and slashed the latter with his bolo. To offset these declarations, the case affords positive proof that the defendant, without

provocation or prior aggression, attacked the deceased with a bolo and wounded him in the belly. 

The affirmations of said witnesses cannot prevail against the testimony of two impartial neighbors who came up at the cries of the deceased’s wife calling for help and who, along with the brother-in-law of the wounded man, witnessed the occurrence and rendered him aid, without having seen those two witnesses of the defense on the spot or the alleged prior aggression of the deceased against the defendant. 

Moreover, when the defendant was asked by the chief of police how he came to be wounded in the rump, he replied that he did not know who had inflicted that wound, and this statement of the chief was not impugned at the trial, so it may be that the defendant in preparing his defense wounded himself with a pocket-knife, for the wound was of a trifling nature; and at the investigation held by the justice of the peace who went to the defendant’s house, the latter made no statement regarding the person who had inflicted said wound, while the physician who examined him said that it must have been received when he was standing still. 

It does not therefore appear to be duly proven in the case that the defendant was attacked and

wounded with a pocket-knife by the deceased, and consequently that there was any prior unlawful aggression on the part of the deceased, to justify the finding that the defendant was compelled to wound him in the belly with a bolo in lawful self-defense. The plea or circumstance of exemption from responsibility must be fully proven in the same way as the principal fact, in order to hold that the perpetrator of the crime is not responsible therefor. 

With reference to the classification of the criminal act, it does not appear in the case that this was erroneous, for in spite of the statement of the health officer that the deceased might have been saved if the wound had been aseptically treated from the first, its seriousness and fatal character being due to lack of antiseptics, still the person inflicting it is responsible for all the consequences of his criminal action, and therefore for the death that occurred some days after the deceased received the wound. 

With respect to the third error assigned to the court for having held that the declarations made by the deceased before the justice of the peace had the character of ante mortem declarations, when the death of the deceased did not occur for three days and the wound was not in itself of a fatal nature, it must be remembered that as a result of the wound inflicted upon the deceased

43

his intestines protruded and for this reason the wound was of a serious if not fatal nature. Therefore the opinion of the court with reference to the nature and force of the statements made by the victim before the justice of the peace at the time of the investigation is quite proper, because the credibility of statements made by a person severely wounded rests not only on the serious situation resulting from his wound but also on his physical and mental condition, which, given the depressed state of his mind, has induced the profound conviction that his life is actually slipping away, and that he is in positive and imminent danger of dying sooner or later from the wound: nor can the force of such declaration be affected by the circumstance that he died later, hours o days after it was inflicted, for when the patient did final die his death was due to the wound whose gravity did not diminish from the time he made his declaration until the hour of his death. 

In the case of Moore v. State (96 Tenn., 209) the principle was maintained that "a dying declaration, otherwise competent, will not be excluded because it was made five days before death."cralaw virtua1aw library

In the syllabus of the decision in the case of Daughdrill v. State (113 Ala., 7, 9) it is held: "Where it is shown the deceased had received a

dangerous wound and stated several times that he was dying, and wanted witness to take message to his wife, and was gasping for breath at the time he was talking, and trembling from fear or excitement, sufficient predicate is laid for the admission of a statement made at that time, as a dying declaration; and it is no objection to its admission that such declaration took the form of a message to another."cralaw virtua1aw library

In the syllabus of the decision rendered in the case of the United States v. Castellon (12 Phil. Rep., 160) it is held "Notwithstanding the fact that hearsay evidence is not admissible at a trial, the statements made by an individual who is seriously wounded, at a moment when he was dying being convinced that there was no hope of recovery, constitute per se at least a grave, conclusive and decisive indication of the culpability of the persons designated by the dying man, inasmuch as it must be assumed that he, being in so precarious a condition, spoke truthfully, and that he was not induced by a desire to tell a lie and to injure a innocent person."cralaw virtua1aw library

For the foregoing reasons, whereby the errors assigned t the judgment appealed from are refuted and said judgment found to be in accordance with the law and the merits of the case, it is affirmed, with the costs against

the Appellant. 

Arellano, C.J., Johnson, Trent and Araullo, JJ., concur. 

Moreland, J., concurs in the result.

45. G.R. No. L-27097 January 17, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ANTONIO TOLING y ROVERO and JOSE TOLING y ROVERO, defendants-appellants.

Office of the Solicitor General Felix V. Makasiar and Solicitor Dominador L. Quiroz for plaintiff-appellee.

Santiago F. Alidio as counsel de oficio for defendants-appellants.

 

AQUINO, J.:

Antonio Toling and Jose Toling, brothers, appealed from the decision of the Court of First Instance of Laguna, finding them guilty of multiple murder and attempted murder, sentencing them to death and ordering them to indemnify each set of heirs of (1) Teresita B. Escanan, (2) Antonio B. Mabisa, (3) Isabelo S.

44

Dando, (4) Elena B. Erminio (5) Modesta R. Brondial (6) Isabel Felices and (7) Teodoro F. Bautista in the sum of P6,000 and to pay Amanda Mapa the sum of P500 (Criminal Case No. SC-966). The judgment of conviction was based on the following facts:

Antonio Toling and Jose Toling, twins, both married, are natives of Barrio Nenita which is about eighteen (or nine) kilometers away from Mondragon, Northern Samar. They are illiterate farmers tilling their own lands. They were forty-eight years old in 1966. Antonio is one hour older than Jose. Being twins, they look alike very much. However, Antonio has a distinguishing cut in his ear (44 tsn Jan. 14, 1966).

Antonio's daughter, Leonora, was working in Manila as a laundrywoman since September, 1964. Jose's three children one girl and two boys, had stayed in Manila also since 1964.

Antonio decided to go to Manila after receiving a letter from Leonora telling him that she would give him money. To have money for his expenses, Antonio killed a pig and sold the meat to Jose's wife for sixty pesos. Jose decided to go with Antonio in order to see his children. He was able to raise eighty-five pesos for his expenses.

On January 6, 1965, with a bayong containing their pants and shirts, the twins left Barrio Nenita

and took a bus to Allen. From there, they took a launch to Matnog, Sorsogon. From Matnog, they went to Daraga, Albay on board an Alatco bus, and from Daraga, they rode on the train, arriving at the Paco railroad station in Manila at about seven o'clock in the morning of January 8th. It was their first trip to the big city.

At the Paco station, the twins took a jeepney which brought them to Tondo. By means of a letter which Aniano Espenola a labor-recruiter, had given them, they were able to locate an employment agency where they learned the address of the Eng Heng Glassware. Antonio's daughter was working in that store. Accompanied by Juan, an employee of the agency, they proceeded to her employer's establishment. Leonora gave her father fifty pesos. Sencio Rubis Antonio's grandson, gave him thirty pesos. Antonio placed the eighty pesos in the right pocket of his pants. It was then noontime.

Jose was not able to find any of his children in the city. The twins returned to the agency where they ate their lunch at Juan's expense. From the agency, Juan took the twins to the Tutuban railroad station that same day, January 8th, for their homeward trip.

After buying their tickets, they boarded the night Bicol express train at about five o'clock in the

afternoon. The train left at six o'clock that evening.

The twins were in coach No. 9 which was the third from the rear of the dining car. The coach had one row of two-passenger seats and another row of three- passenger seats. Each seat faced an opposite seat. An aisle separated the two rows. The brothers were seated side by side on the fourth three-passenger seat from the rear, facing the back door. Jose was seated between Antonio, who was near the window, and a three-year old boy. Beside the boy was a woman breast-feeding her baby who was near the aisle. That woman was Corazon Bernal. There were more than one hundred twenty passengers in the coach. Some passengers were standing on the aisle.

Sitting on the third seat and facing the brothers were two men and an old woman who was sleeping with her head resting on the back of the seat (Exh. 2). on the two-passenger seat across the aisle in line with the seat where the brothers were sitting, there were seated a fat woman, who was near the window, and one Cipriano Reganet who was on her left. On the opposite seat were seated a woman, her daughter and Amanda Mapa with an eight-month old baby. They were in front of Reganet.

45

Two chico vendors entered the coach when the train stopped at Cabuyao, Laguna. The brothers bought some chicos which they put aside. The vendors alighted when the train started moving. It was around eight o'clock in the evening.

Not long after the train had resumed its regular speed, Antonio stood up and with a pair of scissors (Exh. B) stabbed the man sitting directly in front of him. The victim stood up but soon collapsed on his seat.

For his part, Jose stabbed with a knife (Exh. A) the sleeping old woman who was seated opposite him. She was not able to get up anymore. 1

Upon seeing what was happening, Amanda Mapa, with her baby, attempted to leave her seat, but before she could escape Jose stabbed her, hitting her on her right hand with which she was supporting her child (Exh. D-2). The blade entered the dorsal side and passed through the palm. Fortunately, the child was not injured. Most of the passengers scurried away for safety but the twins, who had run amuck, stabbed everyone whom they encountered inside the coach. 2

Among the passengers in the third coach was Constabulary Sergeant Vicente Z. Rayel, a train escort who, on that occasion, was not on duty. He was taking his wife and children to Calauag,

Quezon. He was going to the dining car to drink coffee when someone informed him that there was a stabbing inside the coach where he had come from. He immediately proceeded to return to coach No. 9. Upon reaching coach 8, he saw a dead man sprawled on the floor near the toilet. At a distance of around nine meters, he saw a man on the platform separating coaches Nos. 8 and 9, holding a knife between the thumb and index finger of his right hand, with its blade pointed outward. He shouted to the man that he (Rayel) was a Constabularyman and a person in authority and Rayel ordered him to lay down his knife (Exh. A) upon the count of three, or he would be shot.

Instead of obeying, the man changed his hold on the knife by clutching it between his palm and little finger (with the blade pointed inward) and, in a suicidal impulse, stabbed himself on his left breast. He slowly sank to the floor and was prostrate thereon. Near the platform where he had fallen, Rayel saw another man holding a pair of scissors (Exh. B). He retreated to the steps near the platform when he saw Rayel armed with a pistol.

Rayel learned from his wife that the man sitting opposite her was stabbed to death.

Constabulary Sergeant Vicente Aldea was also in the train. He was in the dining car when he

received the information that there were killings in the third coach. He immediately went there and, while at the rear of the coach, he met Mrs. Mapa who was wounded. He saw Antonio stabbing with his scissors two women and a small girl and a woman who was later identified as Teresita B. Escanan (Exh. I to I-3). Antonio was not wounded. Those victims were prostrate on the seats of the coach and on the aisle.

Aldea shouted at Antonio to surrender but the latter made a thrust at him with the scissors. When Antonio was about to stab another person, Aldea stood on a seat and repeatedly struck Antonio on the head with the butt of his pistol, knocking him down. Aldea then jumped and stepped on Antonio's buttocks and wrested the scissors away from him. Antonio offered resistance despite the blows administered to him.

When the train arrived at the Calamba station, four Constabulary soldiers escorted the twins from the train and turned them over to the custody of the Calamba police. Sergeant Rayel took down their names. The bloodstained scissors and knife were turned over to the Constabulary Criminal Investigation Service (CIS).

Some of the victims were found dead in the coach while others were picked up along the railroad tracks between Cabuyao and Calamba.

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Those who were still alive were brought to different hospitals for first-aid treatment. The dead numbering twelve in all were brought to Funeraria Quiogue, the official morgue of the National Bureau of Investigation (NBI) in Manila, where their cadavers were autopsied (Exh. C to C-11). A Constabulary photographer took some pictures of the victims (Exh. G to I-2, J-1 and J-2).

Of the twelve persons who perished, eight, whose bodies were found in the train, died from stab wounds, namely:

(1) Isabel Felices, 60, housewife, Ginlajon, Sorsogon.

(2) Antonio B. Mabisa, 28, married, laborer, Guinayangan, Quezon.

(3) Isabelo S. Dando, 45, married, Paracale, Camarines Norte.

(4) Susana C. Hernandez, 46, married, housekeeper, Jose Panganiban, Camarines Norte.

(5) Teodoro F. Bautista, 72, married, Nawasa employee, San Juan, Rizal.

(6) Modesta R. Brondial 58, married, housekeeper, Legaspi City.

(7) Elena B. Erminio 10, student, 12 Liberty Avenue, Cubao, Quezon City and

(8) Teresita B. Escanan, 25, housemaid, 66 Menlo Street, Pasay City (Exh. C to C-3, C-7, C-8, C-9, C-11, L to L-2, N to N-2, 0 to 0-2, P to P-2, Q to Q-2, R to R-2 and T to T-2)

Four dead persons were found near the railroad tracks. Apparently, they jumped from the moving train to avoid being killed. They were:

(1) Timoteo U. Dimaano, 53 married, carpenter, Miguelin, Sampaloc, Manila. .

(2) Miguel C. Oriarte, 45, married, Dalagan, Lopez, Quezon.

(3) Salvador A. Maqueda 52, married, farmer, Lopez, Quezon and

(4) Shirley A. Valenciano, 27, married, housekeeper, 657-D Jorge Street, Pasay City (Exh. C-4. C-5, C-6, C-10, J, J-1, J-2, K to K-2, M to M-3 and S to S-2).

Among the injured were Lucila Pantoja, Baby X, Mrs. X, Mrs. Armanda Mapa-Dizon, Brigida Sarmiento-Palma, Cipriano Reganet and Corazon Bernal-Astrolavio (Exh. D to D-5). Mrs. Astrolavio supposedly died later (43 tsn January 14, 1966).

Mrs. Mapa declared that because of the stab wound inflicted upon her right hand by Jose Toling, she was first brought to the Calamba Emergency Hospital. Later, she was transferred to the hospital of the Philippine National Railways at Caloocan City where she was confined for thirteen days free of charge. As a result of her injury, she was not able to engage in her occupation of selling fish for one month, thereby losing an expected earning of one hundred fifty pesos. When she ran for safety with her child, she lost clothing materials valued at three hundred pesos aside from two hundred pesos cash in a paper bag which was lost.

The case was investigated by the Criminal Investigation Service of the Second Constabulary Zone headquarters at Camp Vicente Lim, Canlubang, Laguna. On January 9, 1965 Constabulary investigators took down the statements of Mrs. Mapa-Dizon, Cipriano Reganet, Corazon Bernal, Brigida de Sarmiento and Sergeant Aldea. On that date, the statements of the Toling brothers were taken at the North General Hospital. Sergeant Rayel also gave a statement.

Antonio Toling told the investigators that while in the train he was stabbed by a person "from the station" who wanted to get his money. He retaliated by stabbing his assailant. He said that

47

he stabbed somebody "who might have died and others that might not". He clarified that in the train four persons were asking money from him. He stabbed one of them. "It was a hold-up".

He revealed that after stabbing the person who wanted to rob him, he stabbed other persons because, inasmuch as he "was already bound to die", he wanted "to kill everybody" (Exh. X or 8, 49 tsn Sept. 3, 1965).

Jose Toling, in his statement, said that he was wounded because he was stabbed by a person "from Camarines" who was taking his money. He retaliated by stabbing his assailant with the scissors. He said that he stabbed two persons who were demanding money from him and who were armed with knives and iron bars.

When Jose Toling was informed that several persons died due to the stabbing, he commented that everybody was trying "to kill each other" (Exh. I-A).

According to Jose Toling, two persons grabbed the scissors in his pocket and stabbed him in the back with the scissors and then escaped. Antonio allegedly pulled out the scissors from his back, gave them to him and told him to avenge himself with the scissors.

On January 20, 1965 a Constabulary sergeant filed against the Toling brothers in the municipal court of Cabuyao, Laguna a criminal complaint for multiple murder and multiple frustrated murder. Through counsel, the accused waived the second stage of the preliminary investigation. The case was elevated to the Court of First Instance of Laguna where the Provincial Fiscal on March 10, 1965 filed against the Toling brothers an information for multiple murder (nine victims), multiple frustrated murder (six victims) and triple homicide (as to three persons who died after jumping from the running train to avoid being stabbed).

At the arraignment, the accused, assisted by their counsel de oficio pleaded not guilty. After trial, Judge Arsenio Nañawa rendered the judgment of conviction already mentioned. The Toling brothers appealed.

In this appeal, appellants' counsel de oficio assails the credibility of the prosecution witnesses, argues that the appellants acted in self-defense and contends, in the alternative, that their criminal liability was only for two homicides and for physical injuries.

According to the evidence for the defense (as distinguished from appellants' statements, Exhibits 1 and 8), when the Toling twins were at the Tutuban Railroad Station in the afternoon of

January 8, 1965, Antonio went to the ticket counter to buy tickets for himself and Jose. To pay for the tickets, he took out his money from the right pocket of his pants and later put back the remainder in the same pocket. The two brothers noticed that four men at some distance from them were allegedly observing them, whispering among themselves and making signs. The twins suspected that the four men harbored evil intentions towards them.

When the twins boarded the train, the four men followed them. They were facing the twins. They were talking in a low voice. The twins sat on a two passenger seat facing the front door of the coach, the window being on the right of Antonio and Jose being to his left. Two of the four men, whom they were suspecting of having evil intentions towards them, sat on the seat facing them, while the other two seated themselves behind them. Some old women were near them. When the train was already running, the man sitting near the aisle allegedly stood up, approached Antonio and pointed a balisong knife at his throat while the other man who was sitting near the window and who was holding also a balisong knife attempted to pick Antonio's right pocket, threatening him with death if he would not hand over the money. Antonio answered that he would give only one-half of his money

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provided the man would not hurt him, adding that his (Antonio's) place was still very far.

When Antonio felt some pain in his throat, he suddenly drew out his hunting knife or small bolo (eight inches long including the handle) from the back pocket of his pants and stabbed the man with it, causing him to fall to the floor with his balisong. He also stabbed the man who was picking his pocket. Antonio identified the two men whom he had stabbed as those shown in the photographs of Antonio B. Mabisa (Exh. L-1 and L-2 or 5-A and 5-B) and Isabelo S. Dando (Exh. N-1 and N-2 or 7-A and 7-B). While Antonio was stabbing the second man, another person from behind allegedly stabbed him on the forehead, causing him to lose consciousness and to fall on the floor (Antonio has two scars on his forehead and a scar on his chest and left forearm, 85, 87 tsn). He regained consciousness when two Constabulary soldiers raised him. His money was gone.

Seeing his brother in a serious condition, Jose stabbed with the scissors the man who had wounded his brother. Jose hit the man in the abdomen. Jose was stabbed in the back by somebody. Jose stabbed also that assailant in the middle part of the abdomen, inflicting a deep wound.

However, Jose did not see what happened to the two men whom he had stabbed because he was already weak. He fell down and became unconscious. He identified Exhibit A as the knife used by Antonio and Exhibit B as the scissors which he himself had used. He recovered consciousness when a Constabulary soldier brought him out of the train.

The brothers presented Doctor Leonardo del Rosario, a physician of the North General Hospital who treated them during the early hours of January 9, 1965 and who testified that he found the following injuries on Antonio Toling:

Wound, incised, 1-1/4 inches (sutured), frontal, right; 3-1/2 inches each, mid-frontal (wound on the forehead) and

Wound, stabbed, 3/4 inch, 1 inch medial to anterior axillary line level of 3rd ICS right, penetrating thoracic cavity (chest wound (Exh. 11).

and on Jose Toling a stab wound, one inch long on the paravertebral level of the fifth rib on the left, penetrating the thoracic cavity (Exh. 10). The wound was on the spinal column in line with the armpit or "about one inch from the midline to the left" (113 tsn). The twins were discharged from the hospital on January 17th.

The trial court, in its endeavor to ascertain the motive for the twins' rampageous behavior, which resulted in the macabre deaths of several innocent persons, made the following observations:

What could be the reason or motive that actuated the accused to run amuck? It appears that the accused travelled long over land and sea spending their hard earned money and suffering privations, even to the extent of foregoing their breakfast, only to receive as recompense with respect to Antonio the meager sum of P50 from his daughter and P30 from his grandson and with respect to Jose to receive nothing at all from any of his three children whom he could not locate in Manila.

It also appears that the accused, who are twins, are queerly alike, a fact which could easily invite some people to stare or gaze at them and wonder at their very close resemblance. Like some persons who easily get angry when stared at, however, the accused, when stared at by the persons in front of them, immediately suspected them as having evil intention towards them (accused).

To the mind of the Court, therefore, it is despondency on the part of the accused coupled with their unfounded suspicion of evil intention on the part of those who happened to stare at them

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that broke the limit of their self-control and actuated them to run amuck.

We surmise that to the captive spectators in coach No. 9 the spectacle of middle-aged rustic twins, whom, in the limited space of the coach, their co-passengers had no choice but to notice and gaze at, was a novelty. Through some telepathic or extra-sensory perception the twins must have sensed that their co-passengers were talking about them in whispers and making depreciatory remarks or jokes about their humble persons. In their parochial minds, they might have entertained the notion or suspicion that their male companions, taking advantage of their ignorance and naivete, might victimize them by stealing their little money. Hence, they became hostile to their co-passengers. Their pent-up hostility erupted into violence and murderous fury.

A painstaking examination of the evidence leads to the conclusion that the trial court and the prosecution witnesses confounded one twin for the other. Such a confusion was unavoidable because the twins, according to a Constabulary investigator, are "very identical". Thus, on the witness stand CIS Sergeants Alfredo C. Orbase and Liberato Tamundong after pointing to the twins, refused to take the risk of identifying who was Antonio and who was Jose. They confessed

that they might be mistaken in making such a specific identification (28 tsn September 3, 1965; 32 tsn November 5, 1965).

In our opinion, to ascertain who is Antonio and who is Jose, the reliable guides would be their sworn statements (Exh. 1 and 8), executed one day after the killing, their own testimonies and the medical certificates (Exh. 10 and 11). Those parts of the evidence reveal that the one who was armed with the knife was Antonio and the one who was armed with the scissors was Jose. The prosecution witnesses and the trial court assumed that Antonio was armed with the scissors (Exh. B) and Jose was armed with the knife (Exh. A). That assumption is erroneous.

In his statement and testimony, Antonio declared that he was armed with a knife, while Jose declared that he was armed with the scissors which Antonio had purchased at the Tutuban station, before he boarded the train and which he gave to Jose because the latter is a barber whose old pair of scissors was already rusty. As thus clarified, the person whom Sergeant Rayel espied as having attempted to commit suicide on the platform of the train by stabbing himself on the chest would be Antonio (not Jose). That conclusion is confirmed by the medical certificate, Exhibit 11, wherein it is attested that Antonio had a wound in the chest. And the

person whom Sergeant Aldea subdued after the former had stabbed several persons with a pair of scissors (not with a knife) was Jose and not Antonio. That fact is contained in his statement of January 9, 1965 (p. 9, Record).

The mistake of the prosecution witnesses in taking Antonio for Jose and vice-versa does not detract from their credibility. The controlling fact is that those witnesses confirmed the admission of the twins that they stabbed several passengers.

Appellants' counsel based his arguments on the summaries of the evidence found in the trial court's decision. He argues that the testimonies of Sergeants Rayel and Aldea are contradictory but he does not particularize on the supposed contradictions.

The testimonies of the two witnesses do not cancel each other. The main point of Rayel's testimony is that he saw one of the twins stabbing himself in the chest and apparently trying to commit suicide. Aldea's testimony is that he knocked down the other twin, disabled him and prevented him from committing other killings.

It may be admitted that Rayel's testimony that Aldea took the knife of Jose Toling was not corroborated by Aldea. Neither did Aldea testify that Antonio was near Jose on the platform of the

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train. Those discrepancies do not render Rayel and Aldea unworthy of belief. They signify that Aldea and Rayel did not give rehearsed testimonies or did not compare notes.

Where, as in this case, the events transpired in rapid succession in the coach of the train and it was nighttime, it is not surprising that Rayel and Aldea would not give identical testimonies (See 6 Moran's Comments on the Rules of Court, 1970 Ed. 139-140; People vs. Resayaga, L-23234, December 26, 1963, 54 SCRA 350). There is no doubt that Aldea and Rayel witnessed some of the acts of the twins but they did not observe the same events and their powers of perception and recollection are not the same.

Appellants' counsel assails the testimony of Mrs. Mapa. He contends that no one corroborated her testimony that one of the twins stabbed a man and a sleeping woman sitting on the seat opposite the seat occupied by the twins. The truth is that Mrs. Mapa's testimony was confirmed by the necropsy reports and by the twins themselves who admitted that they stabbed some persons.

On the other hand, the defense failed to prove that persons, other than the twins, could have inflicted the stab wounds. There is no doubt as to the corpus delicti. And there can be no doubt that the twins, from their own admissions (Exh. 1 and

8) and their testimonies, not to mention the testimonies of Rayel, Aldea, Mrs. Mapa and the CIS investigators, were the authors of the killings.

Apparently, because there was no doubt on the twins' culpability, since they were caught in flagrante delicto the CIS investigators did not bother to get the statements of the other passengers in Coach No. 9. It is probable that no one actually saw the acts of the twins from beginning to end because everyone in Coach No. 9 was trying to leave it in order to save his life. The ensuing commotion and confusion prevented the passengers from having a full personal knowledge of how the twins consummated all the killings.

On the other hand, the twins' theory of self-defense is highly incredible. In that crowded coach No. 9, which was lighted, it was improbable that two or more persons could have held up the twins without being readily perceived by the other passengers. The twins would have made an outcry had there really been an attempt to rob them. The injuries, which they sustained, could be attributed to the blows which the other passengers inflicted on them to stop their murderous rampage.

Appellants' view is that they should be held liable only for two homicides, because they admittedly killed Antonio B. Mabisa and Isabelo S. Dando,

and for physical injuries because they did not deny that Jose Toling stabbed Mrs. Mapa. We have to reject that view. Confronted as we are with the grave task of passing judgment on the aberrant behavior of two yokels from the Samar hinterland who reached manhood without coming into contact with the mainstream of civilization in urban areas, we exercised utmost care and solicitude in reviewing the evidence. We are convinced that the record conclusively establishes appellants' responsibility for the eight killings.

To the seven dead persons whose heirs should be indemnified, according to the trial court, because they died due to stab wounds, should be added the name of Susana C. Hernandez (Exh. P, P-1 and P-2). The omission of her name in judgment was probably due to inadvertence. According to the necropsy reports, four persons, namely, Shirley A. Valenciano, Salvador A. Maqueda, Miguel C. Oriarte and Timoteo U. Dimaano, died due to multiple traumatic injuries consisting of abrasions, contusions, lacerations and fractures on the head, body and extremities (Exh. J to J-2, K to K-2, M to M-2 and S to S-2).

The conjecture is that they jumped from the moving tracing to avoid being killed but in so doing they met their untimely and horrible deaths. The trial court did not adjudge them as

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victims whose heirs should be indemnified. As to three of them, the information charges that the accused committed homicide. The trial court dismissed that charge for lack of evidence.

No one testified that those four victims jumped from the train. Had the necropsy reports been reinforced by testimony showing that the proximate cause of their deaths was the violent and murderous conduct of the twins, then the latter would be criminally responsible for their deaths.

Article 4 of the Revised Penal Code provides that "criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended". The presumption is that "a person intends the ordinary consequences of his voluntary act" (Sec. 5[c], Rule 131, Rules of Court).

The rule is that "if a man creates in another man's mind an immediate sense of danger which causes such person to try to escape, and in so doing he injures himself, the person who creates such a state of mind is responsible for the injuries which result" (Reg. vs. Halliday 61 L. T. Rep. [N.S.] 701, cited in U.S. vs. Valdez, 41 Phil. 4911, 500).

Following that rule, is was held that "if a person against whom a criminal assault is directed reasonably believes himself to be in danger of death or great bodily harm and in order to escape jumps into the water, impelled by the instinct of self-preservation, the assailant is responsible for homicide in case death results by drowning" (Syllabus, U.S. vs. Valdez, supra, See People vs. Buhay, 79 Phil. 371).

The absence of eyewitness-testimony as to the jumping from the train of the four victims already named precludes the imputation of criminal responsibility to the appellants for the ghastly deaths of the said victims.

The same observation applies to the injuries suffered by the other victims. The charge of multiple frustrated murder based on the injuries suffered by Cipriano Pantoja, Dinna Nosal, Corazon Bernal and Brigida Sarmiento (Exh. D, D-3 to D-5) was dismissed by the trial court for lack of evidence. Unlike Mrs. Mapa, the offended parties involved did not testify on the injuries inflicted on them.

The eight killings and the attempted killing should be treated as separate crimes of murder and attempted murder qualified be treachery (alevosia) (Art. 14[16], Revised Penal Code). The unexpected, surprise assaults perpetrated by the twins upon their co-passengers, who did not

anticipate that the twins would act like juramentados and who were unable to defend themselves (even if some of them might have had weapons on their persons) was a mode of execution that insured the consummation of the twins' diabolical objective to butcher their co-passengers. The conduct of the twins evinced conspiracy and community of design.

The eight killings and the attempted murder were perpetrated by means of different acts. Hence, they cannot be regarded as constituting a complex crime under article 48 of the Revised Penal Code which refers to cases where "a single act constitutes two or more grave felonies, or when an offense is a necessary means for committing the other".

As noted by Cuello Calon, the so-called "concurso formal o ideal de delitos reviste dos formas: (a) cuando un solo hecho constituye dos o mas delitos (el llamado delito compuesto); (b) cuando uno de ellos sea medio necesario para cometer otro (el llamado delito complejo)." (1 Derecho Penal, 12th Ed. 650).

On the other hand, "en al concurso real de delitos", the rule, when there is "acumulacion material de las penas", is that "si son varios los resultados, si son varias las acciones, esta conforme con la logica y con la justicia que el agente soporte la carga de cada uno de los

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delitos" (Ibid, p. 652, People vs. Mori, L-23511, January 31, 1974, 55 SCRA 382, 403).

The twins are liable for eight (8) murders and one attempted murder. (See People vs. Salazar, 105 Phil. 1058 where the accused Moro, who ran amuck, killed sixteen persons and wounded others, was convicted of sixteen separate murders, one frustrated murder and two attempted murders; People vs. Mortero, 108 Phil. 31, the Panampunan massacre case, where six defendants were convicted of fourteen separate murders; People vs. Remollino, 109 Phil. 607, where a person who fired successively at six victims was convicted of six separate homicides; U. S. Beecham, 15 Phil. 272, involving four murders; People vs. Macaso, 85 Phil. 819, 828, involving eleven murders; U.S. vs. Jamad, 37 Phil. 305; U.S. vs. Balaba, 37 Phil. 260, 271. Contra: People vs. Cabrera, 43 Phil. 82, 102-103; People vs. Floresca, 99 Phil. 1044; People vs. Sakam, 61 Phil. 27; People vs. Lawas, 97 Phil. 975; People vs. Manantan, 94 Phil. 831; People vs. Umali, 96 Phil. 185; People vs. Cu Unjiengi, 61 Phil. 236; People vs. Penas, 66 Phil. 682; People vs. De Leon, 49 Phil. 437, where the crimes committed by means of separate acts were held to be complex on the theory that they were the product of a single criminal impulse or intent).

As no generic mitigating and aggravating circumstances were proven in this case, the penalty for murder should be imposed in its medium period or reclusion perpetua (Arts. 64[l] and 248, Revised Penal Code. The death penalty imposed by the trial court was not warranted.

A separate penalty for attempted murder should be imposed on the appellants. No modifying circumstances can be appreciated in the attempted murder case.

WHEREFORE, the trial court's judgment is modified by setting aside the death sentence. Defendants-appellants Antonio Toling and Jose Toling are found guilty, as co-principals, of eight (8) separate murders and one attempted murder. Each one of them is sentenced to eight (8) reclusion perpetuas for the eight murders and to an indeterminate penalty of one (1) year of prision correccional as minimum to six (6) years and one (1) day of prision mayor as maximum for the attempted murder and to pay solidarily an indemnity of P12,000 to each set of heirs of the seven victims named in the dispositive part of the trial court's decision and of the eight victim, Susana C. Hernandez, or a total indemnity of P96,000, and an indemnity of P500 to Amanda Mapa. In the service of the penalties, the forty-year limit fixed in the penultimate paragraph of article 70 of the Revised Penal

Code should be observed. Costs against the appellants.

SO ORDERED.

Makalintal, C.J., Castro, Fernando, Teehankee, Barredo, Antonio, Esguerra, Fernandez and Muñoz Palma, JJ., concur.

Makasiar, J., took no part.

 46. March 22, 1921

G.R. No. 16486THE UNITED STATES, plaintiff-appelle,vs.CALIXTO VALDEZ Y QUIRI, defendant-appellant.

Angel Roco for appellant.Acting Attorney-General Feria for appellee.

STREET, J.:

The rather singular circumstances attending the commission of the offense of homicide which is under discussion in the present appeal are these:

At about noon, on November 29, 1919, while the interisland steamer Vigan was anchored in the Pasig River a short distance from the lighthouse and not far from where the river debouches into the Manila Bay, a small boat was sent out to raise the anchor. The crew of this boat consisted

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of the accused, Calixto Valdez y Quiri, and six others among whom was the deceased, Venancio Gargantel. The accused was in charge of the men and stood at the stern of the boat, acting as helmsman, while Venancio Gargantel was at the bow.

The work raising the anchor seems to have proceeded too slowly to satisfy the accused, and he accordingly began to abuse the men with offensive epithets. Upon this Venancio Gargantel remonstrated, saying that it would be better, and they would work better, if he would not insult them. The accused took this remonstrance as a display of insubordination; and rising in rage he moved towards Venancio, with a big knife in hand, threatening to stab him. At the instant when the accused had attained to within a few feet of Venancio, the latter, evidently believing himself in great and immediate peril, threw himself into the water and disappeared beneath its surface to be seen no more.

The boat in which this incident took place was at the time possibly 30 or 40 yards from shore and was distant, say, 10 paces from the Vigan. Two scows were moored to the shore, but between these and the boat intervened a space which may be estimated at 18 or 20 yards. At it was full midday, and there was nothing to obstruct the view of persons upon the scene, the failure of

Venancio Gargantel to rise to the surface conclusively shows that, owing to his possible inability to swim or the strength of the current, he was borne down into the water and was drowned.

Two witnesses who were on the boat state that, immediately after Venancio leaped into the water, the accused told the remaining members of the crew to keep quiet or he would kill them. For this reason they made no movement looking to rescue; but inasmuch as there witnesses are sure that Venancio did not again come to the surface, efforts at rescue would have been fruitless. The fact that the accused at his juncture threatened the crew with violence is, therefore, of no moment except tho show the temporary excitement under which he was laboring.

On the next day one of the friends of Venancio Gargantel posted himself near the lighthouse to watch for the body, in the hope that it might come to the surface and could thus be recovered. Though his friendly vigil lasted three days nothing came of it.

It may be added that Venancio has not returned to his lodging in Manila, where he lived as a bachelor in the house of an acquaintance; and his personal belongings have been delivered to a representative of his mother who lives in the Province of Iloilo. His friends and relatives, it is

needless to say, take it for granted that he is dead.

The circumstances narrated above are such in our opinion as to exclude all reasonable possibility that Venancio Gargantel may have survived; and we think that the trial judge did not err in holding that he is dead and that he came to his death by drowning under the circumstances stated. The proof is direct that he never rose to the surface after jumping into the river, so far as the observers could see; and this circumstance, coupled with the known fact that human life must inevitably be extinguished by asphyxiation under water, is conclusive of his death. The possibility that he might have swum ashore, after rising in a spot hidden from the view of his companions, we consider too remote to be entertained for a moment.

As to the criminal responsibility of the accused for the death thus occasioned the likewise can be no doubt; for it is obvious that the deceased, in throwing himself in the river, acted solely in obedience to the instinct of self-preservation and was in no sense legally responsible for his own death. As to him it was but the exercise of a choice between two evils, and any reasonable person under the same circumstances might have done the same. As was once said by a British court, "If a man creates in another man's

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mind an immediate sense of dander which causes such person to try to escape, and in so doing he injuries himself, the person who creates such a state of mind is responsible for the injuries which result." (Reg. vs. Halliday, 61 L. T. Rep. [N.S.], 701.

In this connection a pertinent decision from the Supreme Court of Spain, of July 13, 1882, is cited in the brief of The Attorney-General, as follows: It appeared that upon a certain occasion an individual, after having inflicted sundry injuries upon another with a cutting weapon, pointed a shotgun at the injured person and to escape the discharge the latter had to jump into a river where he perished by drowning. The medical authorities charged with conducting the autopsy found that only one of the wounds caused by a cut could have resulted in the death of the injured person, supposing that he had received no succour, and that by throwing himself in the river he in fact died of asphyxia from submersion. Having been convicted as the author of the homicide, the accused alleged upon appeal that he was only guilty of the offense of inflicting serious physical injuries, or at most of frustrated homicide. The Supreme Court, disallowing the appeal, enunciated the following doctrine: "That even though the death of the injured person should not be considered as the exclusive and necessary effect of the very grave wound which

almost completely severed his axillary artery, occasioning a hemorrhage impossible to stanch under the circumstances in which that person was placed, nevertheless as the persistence of the aggression of the accused compelled his adversary, in order to escape the attack, to leap into the river, an act which the accused forcibly compelled the injured person to do after having inflicted, among others, a mortal wound upon him and as the aggressor by said attack manifested a determined resolution to cause the death of the deceased, by depriving him of all possible help and putting him in the very serious situation narrated in the decision appealed from, the trial court, in qualifying the act prosecuted as consummated homicide, did not commit any error of law, as the death of the injured person was due to the act of the accused." (II Hidalgo, Codigo Penal, p. 183.)

The accused must, therefore, be considered the responsible author of the death of Venancio Gargantel, and he was properly convicted of the offense of homicide. The trial judge appreciated as an attenuating circumstance the fact that the offender had no intention to commit so great a wrong as that committed. (Par. 3, art. 9 Penal Code.) In accordance with this finding the judge sentenced the accused to undergo imprisonment for twelve years and one day, reclusion temporal, to suffer the corresponding accessories, to

indemnify the family of the deceased in the sum of P500, and to pay the costs. Said sentenced is in accordance with law; and it being understood that the accessories appropriate to the case are those specified in article 59 of the Penal Code, the same is affirmed, with costs against the appellant. So ordered.

Mapa, C.J., Malcolm, Avanceña and Villamor, JJ., concur.

Separate Opinions

ARAULLO, J., dissenting:

I dissent from the majority opinion in this case.

The only fact that the evidence shows in that Venancio Gargantel, one of those who were in a boat of the steamer Vigan subject to the orders of the accused Calixto Valdez and who at the time was engaged in the work of raising the anchor of that vessel, which was then lying at the Pasig River, a short distance from the lighthouse and not far from its mouth at the Manila Bay, upon seeing that the accused was approaching him, armed with a big knife, and in the attitude of attacking him, threw himself into the water and disappeared from the surface and had not been seen again. This event took place at noon on November 29, 1919, the boat being then about 30 or 40 yards from land and about 10 steps

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from the Vigan, there being two lighters moored to the shore and at a distance of about 18 or 20 yards from the boat. All of these facts are stated in the decision itself.

The original information in the present case, charging Calixto Valdez y Quiri with the crime of homicide and alleging that as a result of his having thrown himself into the river under the circumstances mentioned, Venancio Gargantel was drowned, was presented on December 8, 1919, that is, nine days afterwards.

There is no evidence whatever that the corpse of Venancio Gargantel had been found or, what is the same thing, that he had died. From November 28, the day when the event occurred, until December 8, when the information was filed, it cannot in any manner be maintained that the necessary time had passed for us to properly conclude, as is alleged in the information, that said Gargantel had died by drowning, as a consequence of his having thrown himself into the water upon seeing himself threatened and attacked by the accused. Neither does it appear in the evidence that all the precaution necessary for us to assure ourselves, as a sure and proven fact, that Venancio Gargantel then died by drowning, were taken; nor is there any evidence that it would have been impossible for him, by swimming or by any other means to rise to the

surface at a place other than the Pasig River or that where the boat was, from which he threw himself into the river, and in that manner save himself from death.

From the evidence of the witnesses for the prosecution which is the only evidence in the record, for the accused di not take the stand, it only appears that Venancio Gargantel, after having jumped from the boat, did not rise again to the surface. Such was the statement of two of those witnesses who were members of the boat's crew at the time. Another witness also declared that Gargantel was afterwards not again seen at the house where he lived in this city, No. 711 San Nicolas Street, where he kept his trunks and some effects, a fact which caused his mother, who lived in the municipality of Guimbal, in the Province of Iloilo, upon being informed of it and upon the failure of Venancio to appear in said place, to give special power on the 28th of that month of December, that is, one month afterwards, to a student, Ignacio Garzon, to get the trunks and effects of Venancio from said house. Sid Garzon himself testified, upon being asked whether Venancio Gargantel had returned to the house of his parents since November 29, 1919, that he had no information about it, and another witness, Pedro Garcia, of the prosecution, stated that he had probably died, because he had not seen Venancio Gargantel.

Therefore, in short, the only fact proved is that since Venancio Gargantel threw himself into the river, upon being threatened with a knife by the accused, his whereabouts has remained unknown even at the moment of rendering judgment in this case, or, February 9, 1920, that is, two and one-half months after the occurrence of the event.

It is stated in the decision that the friend and parents of Gargantel give him up for dead. There is nevertheless in the record no statement of any parent of Gargantel to that effect; for his mother Maria Gatpolitan, a resident of the municipality of Guimbal, merely stated in the power of attorney executed in favor of Ignacio Garzon that the latter should take steps in order that the city fiscal might investigate the death of her son which, according to information, was caused by another members, of the crew of the steamer Vigan; and none of his friends, that is, none of the two members of the party in the boat at that time and of the crew of the steamer Vigan, nor Maximo Gumbog, the owner of the house in which Gargantel lived in this city, nor Pedro Garcia, another member of the crew of that steamer, and finally, nor Ignacio Garzon himself has stated that he gave up Gargantel for dead, for the simple reason that this was not possible, for they only knew that he did not again rise to

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the surface and was not seen again after having thrown himself into the river from the boat.

For this reason it is stated in the decision that the circumstances therein stated are such that they exclude all reasonable possibility that Venancio Gargantel could have survived and that the circumstance that never rose to the surface after having jumped into the river, as witnessed by the persons present, together with the admitted fact that human life is necessarily asphyxiated under the water, is conclusive that he died. Then, there is nothing more than a deduction that Gargantel had died based upon those facts and circumstances.

In my opinion this is not sufficient to convict the accused as guilty of homicide, because there is the possibility that Gargantel had risen to the surface at some place away from the where he threw himself into the river and had embarked on some other vessel in the same river or out of it in the bay and had gone abroad, or to some province of these Islands and is found in some municipality thereof, cannot be denied. And this is very probable inasmuch as it does not appear in the record that the necessary investigation has been made in order to determined even with only some measure of certainty, not to say beyond all reasonable doubt, that it was and is impossible to find said person or determined his whereabouts.

Furthermore, there is not even a presumption juris tantum that he had died, for in order that this presumption may exist, according to section 334 of the Code of Civil Procedure, it is necessary that no information about him should have been received for seven years from his disappearance upon his throwing himself into the river, which occurred on November 29, 1919, that is, only about one year and four months ago. And if, in order that a finding of a civil character in favor of or against some person, may be made, by virtue of that presumption, it is necessary that seven years should have elapsed without any notice being received of the person whose whereabouts is unknown, it is not just, reasonable, or legal that the period of one year and four months from his disappearance or since Venancio Gargantel threw himself into the water should suffice for us to impose upon the accused Calixto Valdez such a grave penalty as that of twelve years and one day of reclusion temporal, merely assuming without declaring it, as a proven fact, that Gargantel has died and at the same time finding said accused to be the author of that death.

Lastly, the decision of the English Supreme Court or that of the Spanish Supreme Court dated July 13, 1882, cited by the majority opinion is not applicable. The first, is not applicable because in the present case it is not proved, beyond reasonable doubt, that some damage

resulted to Gargantel, just as it cannot be considered as proved that he had died, or that he had been injured or that he had suffered some injury after having thrown himself into the river as a result of the threat of the accused. The second is not applicable because the decision of the Supreme Court of Spain refers to a case, in which the injured party had already been wounded with a cutting instrument by the accused before throwing himself into the river upon the latter aiming at him with his gun, it having afterwards been proved upon his being taken out of the river that the wound inflicted upon him by the accused was mortal; and, consequently, it was declared by said court that, even if the death of the deceased be considered as not having resulted exclusively and necessarily from that most grave wound, the persistence of the aggression of the accused compelled his adversary to escape it and threw himself into the river, by depriving him of all possible help and placing him in the serious situation related in the judgment appealed from -a case which, as is seen, is very different from that which took place in the present case.

For the reasons above stated, I am of the opinion, with due respect to the opinion of the majority, that the accused Calixto Valdez y Quiri cannot be found guilty of homicide and should be acquitted.

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47. GR No. L-1003 October 27, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. Buhay FRANCISCO AND OTHERS defendants. FEDERICO BASCO, appellant.

D. Arnaldo J. Guzman for appellant. Mr. Assistant Attorney General Ruperto Kapunan, Jr. and Attorney Mr. Adolfo F. Arguelles representing the government.

 

PAUL, J .:

On the morning of October 28, 1945 at Plaza Burgos Township Bayambang, Province of Pangasinan, Dee Ching Ting, a deaf-mute Chinese, I stick with starting fuel to the soldier Federico Basco, who fell to the ground from the blow . His companion, the soldier Fermin Aguilar, for companionship undoubtedly pursued the Chinese who escaped Addressing the market; But I Did not get catch. In the afternoon, Fermin and other comrades, all soldiers of the Philippine Army, the Chinese continued to search with much effort and other Arsenias Alexander learned of the search; They have not found him yet. In the first of November 1945, Feast of All Saints, Alejandro Arsenias who was on duty in

the village cemetery found Dee Ching Ting, and told him to come out of the cemetery to avoid being seen Federico Basco and Fermin Aguilar who resented him and who were looking for him. The warning given by Alejandro did not work because by chance Basco and Chinese Aguilar saw him and were immediately towards him, and to catch up on the street that goes to the municipal building, buffeted him. Seeing the Chinese Aguilar draw his hunting knife, I run towards the dam, and Aguilar Basco and pursued him hitting him in the highest part. Aguilar immediately gave him another punch, after pushing so I fell into the river. When Chinese crawled over the rocks of the shore, and Basco Aguilar declined precipitously down the stairs and pushed him back into the water throwing; I TRENGTHENING doing to save, again he returned to cling to the rocks and the two accused pushed him; thrown into the river for the third time, made efforts to gain the edge, but it did not succeed because, won in vain struggle against the currents flowing waters found delas Agno River, disappeared; Three days later his body was found.Verified autopsy reveals that she died drowned. By this unfortunate event Fermin Aguilar, Federico Basco, Francisco Alejandro Arsenias Buhay were sued by the Pangasinan Provincial Prosecutor for the crime of murder. At the request of the prosecution, the court dismissed the complaint regarding Buhay

Francisco because his testimony was essential to the prosecution. After the corresponding view, the Court of First Instance of the District absolved Alejandro Federico Arsenias and condemn Bascoa penalty life imprisonment with the accessory, to compensate the heirs of Dee Ching Ting in cantidadde P2,000 and pay one third the costs. Fermin Aguilar was convicted but as in fencha of the crime only had 17 years, 9 months and 18 days of age the process is suspended as far as he and the court ordered referral to Reformatory Children until you reach your of age. Federico Basco appeal.

The defense argues that Basco and Aguilar have had no previous conspiracy to avenge the Chinese, that if they had had such a purpose would not be difficult for them to find in such a small town like Bayambang. It is true that there is no express proof that Aguilar and Basco have agreed to take revenge on the Chinese, but the evidence of record shows that the two were looking into Chinese in the cemetery and pursued him to catch him at the crossroads of the streets the town square where of got punched. When the Chinese, seeing Aguilar make out his hunting knife, he fled toward the dam the two defendants pursued him and although they punched and shoved into Chinese in the highest part of the dam was Aguilar, the two, however, immediately went down the stairs

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and pushed the Chinese when perched on the rocks of the shore. And when he tried to climb a second time, the two accused pushed him. The common and concerted effort to seek Aguilar and Basco, punching, chase and push the Chinese to the river are combined acts that resulted in the death by drowning of Chinese. Such acts were inspired by one motive: the spirit body, as both belong to the same company of the Philippine Army.

The defense insists that Basco should only be convicted of the lesser offense of abuse, beating and abuse because only the Chinese; This "did not need to suspend their ordinary occupations or had need of medical assistance for any time." This contention is untenable. The defendants are not liable only for punches that have given him, nor because he pushed the river but the necessary consequence of such acts, it was the death of Chinese. In this jurisdicion it has stated that the defendant, burning in anger, threatening to attack with a large Venancio and this knife, believing obviously in immediate danger, is thrown into the water and perish, is guilty of murder and not a threat. (EU against Valdez, 41 Phil. Rep., 528.) lawphil.net

In the same decision cited an English case law siquiente states: "If an individual created in the

mind of another a feeling of immediate danger that determines elque that person try to escape, and in doing so, injures himself, who infuses such mood is responsible for the resulting damage. " (Reg. v . Halliday, 61 LT Rep., NS, 701.)

The Supreme Court of Spain in its judgment of July 13, 1882, stated "that while not deemed caused the death of the victim by exclusive and necessary effect of the serious injury that cut almost completely his axillary artery, causing hemorrhaging impossible detention in the circumstances in which that was as persistent aggression otherwise processed ASU forced to flee her to lie on the river to end violently compelled him after causing such processing, besides others, depriving him of all possible and putting in relief the plight told in the judgment, "the sentencing Chamber did not err in sentencing the accused for the crime of homicide accomplished. (11 Hidalgo, Penal Code, 183.) In the so casosarlo for fear of hunting knife made shine Aguilar, according to the defense contends, but because he was mistreated and then pushed first by Aguilar and later by the two defendants. Basco therefore should not respond only punches or the nudge to give the Chinese but by the death of this was the necessary consequence of such acts and forced.

Among the cases cited and the present there is a noticeable difference in those the deceased jumped into the water by miedode imminent danger; Last, the two defendants empujarona un-mute deaf I could not even call for help, abusing his physical superiority: they made the delitosin ball over him quepudiera oppose any resistance the victim.Therefore, the defendants hancometido the crime of murder in violation of Article 248 of the Revised Penal Code, without modifying circumstance of responsibility.

Judgment with costs is confirmed.

Moran, Pres., Paras, Fair, Great, Yarn, Bengzon, Padilla, and Tuason, JJ., Concur.

The Lawphil Project - Arellano Law Foundation

48. September 28, 1935

G.R. No. 42607THE 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.

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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

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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).

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

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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

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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 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.

49. March 14, 1930

G.R. No. 32076THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.NATALIO ILUSTRE, defendant-appellant.

Trinidad, Suarez and Diokno for appellant.Attorney-General Jaranilla fro appelle.

VILLAMOR, J.:

The appellant was tried in the Court of First Instance of Batangas for homicide upon the following information:

That on or about June 24, 1929, in the municipality of Balayan, Province of Batangas, Philippine Islands, the above-named defendant willfully, unlawfully, and feloniously dealt Juan Magsino a blow with his closed fist in the right hypochondriac region, bruising his liver and producing an internal hemorrhage resulting in the death of said Juan Magsino.

Contrary to law.

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The case was duly tried, and the trial court found the defendant guilty of the crime charged, but considering that the accused had no intention to commit so grave an evil as that committed, sentenced him to twelve years and one day, reclusion temporal, P1,000 indemnity to the family of the deceased, and the costs.

Defendant appealed from this sentence, and his counsel now alleges that:

1. The lower court erred in finding that the appellant herein hit Juan Magsino in the right hypochondriac region with his fist, and that said blow bruised the victim's liver.

2. Even admitting hypothetically for the sake of argument, that the defendant hit the deceased causing a contusion or congestion of the liver, the lower court still erred in finding that said contusion or congestion was the direct cause of Magsino's death, and in condemning the herein appellant.

3. There being some doubt as to the real cause of Juan Magsino's death, the lower court erred likewise in convicting the defendant of homicide, instead of sentencing him for misdemeanors against persons.

4. Even supposing that the act prosecuting was really committed by the defendant, as it was

done without criminal intent, the trial court also erred in not acquitting him.

5. Finally, the lower court erred in not giving the defendant the benefit of the reasonable doubt, and therefore in not acquitting him.

It is not disputed that on the morning of June 24, 1929, on St. John's day, a procession was held in the barrio of Canlurangbayan, Balayan. The trial court describes the feast and the occurrence, as follows:

It is characteristic of this feast to make the rounds of the town in procession, with a roasted pig on a piece of cane followed by music and the populace. The bearer goes about daring to the tune of the music, and as is customary, designed to enliven the celebration, the people try to take a piece of barbecued pig. To direct the procession and present the people from consuming the whole animal before reaching the end, a man is placed in charged, who on the day of record, June 24, 1929, happened to be the defendant Natalio Ilustre.

A young man, Juan Magsino by name, delicate and suffering from incipient tuberculosis, made one of the gay multitude and tried to secure a piece of the crackling. To punish his boldness, the defendant ran after him, boxed him, and left him sprawling on the ground. Upon being struck

Juan Magsino suddenly became very ill and his companions had to take him home in a carromata. This was in the morning, and about three o'clock in the afternoon he expired.

The real question raised in this appeal is, What was the cause of Juan Magsino's death?

The autopsy was performed by Doctor Jose Ilagan, municipal physician for Balayan, assisted by Doctors Antonio Agoncillo, municipal physician for Taal, and Hermenegildo de Castillo, municipal physician for Lemery, all of the Province of Batangas. Doctor Ilagan, testifying on the autopsy as evidenced by Exhibit A, bases his diagnosis upon the following: The symptoms of the deceased before death; the interstitial hemorrhage of the liver produced by the lesion thereof; the ecchymotic spots on the skin of the right epigastric region, an indication of internal hemorrhage; the hemorrhagic condition of the peritoneum, and the sanguineous liquid found in the abdominal cavity; adding, that he also found the lungs covered with military granules and the heart was somewhat dilated, but that its valves were normal. In the opinion of this physician, Juan Magsino's death was caused by the contusion of the liver and the internal hemorrhage; that, although the autopsy showed that the deceased had incipient tuberculosis, he could not have died of it; that neither could he

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have died of heart disease, because the slight dilation noticed was due to the increased efforts of this organ owing to the incipient tuberculosis of the lungs. "Tubercular lesions," he declares, "are cavities in the lungs that contain blood causing congestion, and the heart being called upon to make a greater exertion becomes dilated."

Doctor Agoncillo corroborates Ilagan's opinion; but Doctor Castillo, with the self-same data gathered at the autopsy, has not arrived at a definite conclusion as to the real cause of Juan Magsino's death.

Doctor Sixto Roxas, director of the provincial hospital of Batangas, was called upon to express his opinion as to the cause of Magsino's death, in view of the information obtained at the autopsy, to wit: According to Doctors Ilagan and Agoncillo, the anterior right lobe of the liver was bruised, while the left side was normal. They also found sanguineous fluid in the abdominal cavity. They examined the heart and lungs, and found upon the latter military granules, indicating, according to them, the presence of tuberculosis in its first and second stages. The dilated heart they found to weigh 400 grams. The heart valves were normal. They went over the body and found no ecchymosis or lesion, save one ecchymotic spot in the lower part of the abdomen beneath the navel. The peritoneum was hemorrhagic. To the

autopsy data, must added the theory that the death of Juan Magsino occurred a few hours after receiving a blow in the right hypochondrium. The other theory sustained is that the deceased had taken wine and then bathed in the river, and that he had afterwards received a push and had fallen on his back.

After giving some explanation of the data presented to him by the court, Doctor Roxas was thus interrogated:

Q. Well, at any rate, a blow on the right hypochondrium of this individual could have caused his death? — A. Yes, sir; the shock of it.

Q. Supposing five hours passed, as His Honor remarked, considering that the person was delicate, with symptoms of tuberculosis in both lungs, and a consequent dilation of the heart: do you believe, doctor, that a blow could have killed him in five hours? — A. He might die, but it would be an extremely rare case.

Q. Do you not think, doctor, that a sufferer from tuberculosis in the first or second stage, no longer has the amount of blood he had before? — A. Naturally not.

Q. And with a hemorrhage, an internal hemorrhage caused by a blow on the right hypochondrium, don't you think such hemorrhage

contributed considerably to bring about this man's death? — A. Naturally.

Q. And if that man was killed by a shock, that shock was caused by the blow, wasn't it, doctor? — A. Of course.

The testimony just quoted inclines us to believe that in the long run Doctor Roxas agrees with the diagnosis of Doctors Ilagan and Agoncillo, to the effect that Juan Magsino's death was due to a contusion on the liver accompanied by an internal hemorrhage.

It is thus seen that, passing over Doctor Castillo's opinion, which of course, cannot serve as a basis for a definite conclusion, the three medical men, Doctors Ilagan, Agoncillo, and Roxas agree, with this exception, that while the first two who performed the autopsy on the body, with their own eyes saw the result thereof, the latter, that is, Doctor Roxas, simply considered the data hypothetically. We are therefore convinced there is no fundamental disagreement among the medical witnesses as to the cause of the victim's death; and that is was caused by the defendant's blow on the deceased right hypochondrium, which bruised the liver and produced an internal hemorrhage.

The appellant denies having hit Magsino, protesting that he had no motive for doing so; but

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the evidence shows that he punched Magsino in the abdomen a little to the right, felling him to the ground.

The fact that the deceased had a delicate constitution and suffered from incipient pulmonary tuberculosis does not affect the defendant's criminal liability, for eve if it rendered the blow more fatal, the efficient cause of the death remains the same. (U. S. vs. Fenix, 11 Phil., 95) And the circumstance that the defendant did not intend so grave an evil as the death of the victim does not exempt him from criminal liability, since he deliberately committed an act prohibited by law, but simply mitigates his guilt in accordance with article 9, No. 3, of the Penal Code. (U. S. vs. Samea, 15 Phil., 227.)

The instant case comes under the provision of article 404 of the Penal Code providing the penalty of reclusion temporal, which must be imposed in its minimum degree in view of the mitigating circumstance just mentioned, or twelve years and one day, reclusion temporal. Therefore, the judgement appealed from must be, as it is, hereby affirmed, with costs against the appellant.[[1]] So ordered.

Johnson, Malcolm, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

50. August 17, 1912

G.R. No. 7123THE UNITED STATES, plaintiff-appellee,vs.ROSALINDA RODRIGUEZ, defendant-appellant.

G. E. Campbell, for appellant.Attorney-General Villamor, for appellee.

ARELLANO, C.J.:

Rosalino Rodriguez is charged with having dealt Marciano Magno two blows with the fist, one on the left side toward the stomach and the other on the back, which knocked him down who were present at the time of the occurrence and by their aid endeavored to return to his home, which he did not reach, for the reason that, having gone a distance of twenty brazas from the place, he again fell to the ground, this time dead.

Two witnesses testified to having seen the defendant strike those two blows.

The following were offered by the defendant as defenses:

(1) The testimony of his daughter and two other witnesses;

(2) the fact that his right hand was disabled; and

(3) the medical certificate issued by a physician as a result of the autopsy.

The defendant's daughter averred that it was she who struck Marciano Magno the blow with the fist, for the reason that the deceased had caught hold of her hand with unchaste designs, and testified that her father arrived after Magno had fallen to the ground, which testimony was supported by two witnesses.

This defense was not sustained by the trial judge. But on the contrary, he accepted the preponderance of evidence for the prosecution, sustained by three witnesses, of whom two were eyewitnesses to the crime, and the other, of the confession alleged to have been made to him by the defendant when arrested by this witness, to the effect that the victim's death was an unlooked-for misfortune.

Nor was the defense advanced by the defendant to the effect that his right hand was crippled and he was unable to work with sustained by the trial court, and rightly, since, as the defendant testified, he worked with his left hand and sometimes used a spoon with his right; moreover, it was not proved that it was impossible for him to strike blows with either hand.

The defense founded on the medical examination of the corpse consists in that the physician who made the autopsy declared that he had observed hypertrophy of the heart, a

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discharge in the spleen, an increase of this latter organ to four times its ordinary size, and abdominal peritonitis; and in that according to this examination, the cause of death can not be determined for the blows which he may received could have coincided with the traumatism, and "the traumatism which the body received hastened the death of the said individual;" and, finally, this witness being questioned by the defense as to whether the cause of death was a traumatism or a shock, replied, that he was unable to determine which it was.

As was proper, neither was this defense sustained by the trial judge. The defendant was, therefore, found guilty of the crime of homicide and sentenced to twelve years and one day of reclusion temporal, to the accessory penalties and an indemnity of P1,000 to the heirs of the deceased and to the payment of the costs; from which judgment be appealed.

This appeal, forwarded from the Court of First Instance of Nueva Ecija, having heard, together with the allegations and arguments therein made by the parties, whereby it appears to have been well proven that the defendant did strike Marciano Magno in the abdomen and in the black two blows with his hand, as a result of which the latter fell to the ground, and scarely had he gotten up and started to walk when he fell

down dead, we hold that the crime is properly classified as homicide and that Rosalino Rodriguez is responsible therefor.

A blow with the fist or kick, though causing no external wound, may very well produce inflammation of the spleen and peritonitis and cause death; and although the assaulted party was previously affected by some internal malady, if, because of a blow given with the hand or the foot, his death was hastened, beyond peradventure he is responsible therefor who produced the cause for such acceleration as the result of a voluntary and unlawfully inflicted injury.

But in the complaint itself it is alleged that the cause of the assault was the fact that the defendant saw the deceased catch hold of his daughter Roberta's hand, for the purpose of making love to her, and the provincial fiscal stated at the trial that this assertion was the result of a careful investigation made by him, which was indeed confirmed by the facts proven.

It therefore appears that the defendant's act was preceded by an immediate provocation on the part of the deceased, and, evidently, the defendant did not intend to cause so grave an injury as he produced.

With the existence of these two well-defined extenuating circumstances and without any aggravating circumstance rule 5 of article 81 of the Penal Code must be applied and the penalty immediately inferior to that fixed by law imposed. Consequently, modifying the penalty imposed by the lower court to eight years and one day of prision mayor, the judgment appealed is affirmed, with the costs of this instance against the appellant. So ordered.

Mapa, Johnson, Carson and Trent, JJ., concur.

51. March 29, 1935

G.R. No. 42117THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.GREGORIO REYES, defendant-appellant.

Jose G. Pardo for appellant.Acting Solicitor-General Melencio for appellee.

HULL, J.:

Appellant was convicted in the Court of First Instance of Camarines Sur of the crime of homicide committed on the person of Fausta Tavera on the evening of April 30, 1934.

Previous to the crime, the deceased for a couple of weeks had been living with appellant, but her

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parents had persuaded her to come home and were demanding that appellant pay a dowry of P30 before the date of the celebration of the marriage could be fixed.

That evening there had been a barrio procession, and after the procession, they were gathered in one of the houses, where an impromptu dance took place. The deceased and appellant were talking in the yard of the house where the dance was taking place, and she informed him that she could not return to him and that she was going with her parents of Catanduanes. Appellant dragged the deceased towards the street and stabbed her in the chest with a fanknife. Deceased ran to the house of the barriolieutenant, a short distance away, falling deed at the foot of the staircase, although the wound was only a slight one, it not having penetrated the thoracic cavity, having hit a bone.

Immediately Andres Tapil, Tomas and Rufino, relatives of the deceased, attempted to seize the appellant, but with the aid of his knife, he escaped and ran from the scene of the affray.

Appellant as witness in his own behalf claimed that he was attacked by the three relatives of the deceased, and if deceased was wounded by him, it was in the midst of that affray and purely accidental on his part.

Not only is this testimony directly contrary to the witnesses for the prosecution but is greatly weakened by appellant's own statement given to the chief of police the day after the crime. The story as told by appellant was not believed by the trial court, and on the whole does not ring with sincerity and truth.

Appellant contends that he cannot be convicted of homicide as the wound actually inflicted was a superficial wound of no intrinsic magnitude. As above stated, deceased ran screaming to the nearby house where she dropped dead. The sanitary inspector who examined the body the next day, found no other wound and certified that deceased had died from shock as a result of the wound and so testified at the trial.

The death having occurred in an outlying barrio, there was no proper autopsy. So far as is known, deceased was in normal health, but appellant contends that it is incumbent upon the State to prove that the deceased did not die of poisoning or some other cause.

In this jurisdiction it is well settled that such is not the law. A person is responsible for the consequences of his criminal act and even if the deceased had been shown to be suffering from a diseased heart (which was not shown), appellant's assault being the proximate cause of the death, he would be responsible (U.S.   vs .

Luciano, 2 Phil., 96; U.S. vs . Lugo and Lugo, 8 Phil., 80; U.S.   vs . Brobst, 14 Phil., 310 ; U.S.   vs . Rodriguez, 23 Phil., 22.)

The trial court appreciated the mitigating circumstances that the offender had no intention to commit so grave a wrong as that committed and that sufficient provocation or threat on the part of the offended party immediately preceded the act.

We have repeatedly held that when a person stabs another with a lethal weapon such as a fanknife upon a part of the body, for example, the head, chest, or stomach, death could reasonably be anticipated, and the accused must be presumed to have intended the natural consequences of his wrongful act. The means employed contradict the claim that appellant had lack of intention to commit the crime of homicide.

The trial court considered provocation as a mitigating circumstance based on the testimony of appellant that he had been attacked, overlooking the fact that the law requires that the provocation come from the offended party. Certainly the deceased did not attack appellant, and her refusal to renew her illicit relationship with him can hardly be construed as legal provocation.

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On a careful review of the evidence we are convinced that appellant is guilty beyond a reasonable doubt of the crime of homicide without either aggravating or mitigating circumstances and therefore sentence him under Act No. 4103 to from eight years ofprision mayor to fourteen years, eight months, and one day of reclusion temporal and to indemnify the heirs of the offended party in the sum of P1,000. As thus modified the judgment appealed from is affirmed. Costs against appellant. So ordered.

Avanceña, C.J., Malcolm, Vickers, Imperial, Butte, Goddard, and Diaz, JJ., concur.

Separate Opinions

52. August 15, 1914

G.R. No. L-9426THE UNITED STATES, plaintiff-appellee,vs.FILOMENO MARASIGAN, defendant-appellant.

Silvester Apacible for appellant. Office of the Solicitor-General Corpus for appellee.

Moreland, J.:

In this case it appears that about 4 o'clock of the afternoon of the 23d of January, 1913, Francisco Mendoza, while engaged in examining his sugar crop growing upon his lands in the barrio of

Irucan, now called Calayan, in the municipality of Taal, Batangas Province, was asked by the accused and his wife to approach them.

On arriving near them the accused said to Mendoza: "Why is this line curved?" [indicating the division line between the lands of the two.] "Let us make it straight."

Francisco replied saying: "Why do you want to make the line straight? If you make the line straight, it will put certain logs and trees on your land.?"

To this the accused replied: "This is false." Saying this he drew his knife and struck at Mendoza.

On attempting to ward off the blow Mendoza was cut in the left hand. The accused continued the attack, whereupon Mendoza seized the accused by the neck and the body and threw him down. While both were lying upon the ground the accused still sought to strike Mendoza with his dagger. The latter seized the hand which held the dagger and attempted to loosen his hold upon it. While they were thus fighting for the possession of the knife, the wife of the accused came forward and took the dagger from her husband's hand, throwing it to one side. She then seized who after various maneuvers, struck Mendoza a blow which knocked him senseless.

As a result of the fight Mendoza received three wounds, two in the chest and one in the left hand, the latter being the most serious, the extensor tendor in one of the seven days at a cost of about P45, but the middle finger of the left hand was rendered useless.

The story of the affair told by the accused is quite different from that just related, but the facts as stated were as found by the trial court and the evidence given fully supports the findings. We have examined the case carefully and see no reason why it should be reversed upon the facts. We may say the same as to the law.

The accused asserts that he should have a new trial upon the ground that if he should be given another opportunity to present evidence he would be able to show by a physician, Gregorio Limjoco, that the finger which the court found to have been rendered useless by the cut already described was not necessarily a useless member, inasmuch as, if the accused would permit a surgical operation, the finger could be restored to its normal condition. He also asserts that he could demonstrate by the physician referred to that it was not the middle finger that was disabled but the third finger instead.

We do not regard the case made as sufficient to warrant a new trial. It is immaterial for the purposes of this case whether the finger, the

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usefullness of which was destroyed, was the middle finger or the third finger. All agree that one of the fingers of the left hand was rendered useless by the act of the accused. It does not matter which finger it was.

Nor do we attach any importance to the contention that the original condition of the finger could be restored by a surgical operation to relieve the accused from the natural and ordinary results of his crime. It was his voluntary act which disabled Mendoza and he must abide by the consequences resulting therefrom without aid from Mendoza.

The judgment appealed from is affirmed, with costs against the appellant.

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

53. G.R. No. L-10126           October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants, vs.MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner defendant Mariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the driver and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could, others had to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan, Lara

and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they could not get out of the bus. There is nothing in the evidence to show whether or not the passengers already free from the wreck, including the driver and the conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approach the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating the body of the bus and the ground under and around it, and that the lighted torch brought by one of the men who answered the call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were

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removed and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods. For purposes of reference, we are reproducing the pertinent codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734,

1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of

the willful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the trial court that there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown by the fact that according to the testimony of the witnesses, including that of the defense, from the point where one of the front tires burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150 meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of the velocity at which the bus must have been running, its momentum carried it over a distance of 150 meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question is to what degree. The trial

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court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.' And more comprehensively, 'the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of

his act or default that an injury to some person might probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case under the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural area where lanterns and flashlights were not available; and what was more natural than that said rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the

coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be attributed to the negligence of the carrier, through is driver and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as well as the other elements entering into a damage award, we are satisfied that the amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to include compensatory, moral, and other

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damages. We also believe that plaintiffs are entitled to attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased in the bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed immediately because they were already old, and that as a matter of fact, he had been telling the driver to change the said tires, but that the driver did not follow his instructions. If this be true, it goes to prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he changed the tires, specially those in front, with new ones, as he had been instructed to do, probably, despite his speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason to believe that

the driver operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical injuries to others, and the complete loss and destruction of their goods, and yet the criminal case against him, on motion of the fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose testimony he was banking to support the complaint, either failed or appear or were reluctant to testify. But the record of the case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect of the said driver was negligent. In the public interest the prosecution of said erring driver should be pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.

The Lawphil Project - Arellano Law Foundation

54 May 23, 1951

G.R. No. L-3002THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ANICETO MARTIN, defendant-appellant.

E. L. Peralta for appellant.Office of the Solicitor General Felix Bautista Angelo and Solicitor Ramon L. Avanceña for appellee.

JUGO, J.:

Aniceto Martin was accused of the complex crime of parricide with abortion before the Court of First Instance of Ilocos Norte. After trial he was acquitted of abortion, but found guilty of parricide and was sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of the penalty of deceased in the sum of P2,000, with the accessory penalties of the law, and to pay the costs. He appealed.

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We shall not consider the charged of abortion as he was acquitted of it, confining our review to that of parricide.

The defendant, twenty-eight years old, a farmer, was living in the barrio No. 12 of the municipality of Laoag, Ilocos Norte. He courted the girl Laura Liz of the same barrio for several months and was accepted. They had sexual intercourse before marriage and she became pregnant. In an advanced stage of pregnancy, she came to live with the family of the family of the defendant and demanded marriage, which was duly solemnized on June 7, 1948, and they continued to live as husband and wife.

Between four and five o' clock in the morning of August 1, 1948, the corpse of Laura was found inside the family toilet, which was at a certain distance from their home, with a maguey rope, six meters long and one centimeter in diameter, around her neck, leaving a circular mark around it with the exception of the nape which was unmarked undoubtedly due to her long and thick hair covering it. The corpse was first seen by Anselma Martin, sister of the accused, who was living in the same house, and Saturnino Tumaneng, brother-in-law of Laura, who happened to be passing by. The defendant was absent from home.

The barrio lieutenant immediately reported the matter to the chief of police who, accompanied by a policeman, came to the barrio that same morning to make an investigation. When the chief of police arrived, the defendant had not yet returned home. A relative looked for him, finding in a farm which was at considerable distance from the defendants house, and brought him to the latter. Upon being interrogated by the police officer, the defendant at first denied any knowledge of the event, but later promised to make a statement in the municipal building.

The police took possession of the rope and put the defendant in a jeep bound for the municipal building. There the defendant made a confession in the Ilocano language, which he signed and swore to at about noon before the provincial fiscal at the latter's house. Said confession, as translated into English, reads as follows:

I, Aniceto Martin, married, 27 years old, resident of Bo. No. 12, Laoag, Ilocos Norte, after having been sworn to in accordance with law, do hereby declare the following:

Policeman: — Why are you here in the office of the Chief of Police of Laoag, Ilocos Norte, this 1st day of August, 1948?

Aniceto: — I am here, sir, in the office of the Chief of Police of Laoag as I came to report what

I did to my wife, Laura Luiz, because I killed her and the killing was perpetrated as follows:

That at dawn, today August 1, 1948, at about 4 o' clock, I awoke and my wife also awoke and she said to, "Why is it that you seem to have no interest in me?, and I answered her I do not have interest in you and I did not love you with intent to marry you because I am not the author of your pregnancy; again she said to me, "Why is it that you consented to be wedded with me if you did not love me? and in answer, I again told her that I merely consented to be married to you, because otherwise, you would file an action against me, I then went down to our closet west of our house at barrio No. 12, Laoag Ilocos Norte, for major personal necessity, and my wife, Laura Luiz, came after me to the toilet with a rope in her hands and, as she approached me while I was in the very act of ejecting waste matters inside the toilet she placed around my neck the rope which she had in her hands, and immediately, I gripped the rope and took it off and I said, "Why did you do this? my wife also said, "Yes because you do not love me." I snatched the rope from my wife and in turn I placed same around her neck, and in that position I tightened the rope with my two hands and when my wife, Laura Luiz, died I laid her then and there at the foot of the door of our closet with head towards the east. Soon after my

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wife expired I left her already and I proceeded to the country where we use to go, barrio Barit, No. 55, Laoag, west of the barrio school threat.

Q. How did you place the rope around the neck of your wife Laura Luiz, for which reason she died? — A. I wound the rope one turn around the neck of my wife, Laura Luiz, and my two hands tightened the rope and when she expired I laid her at the foot of the door of the toilet and then I went away.

Q. The rope which you used in throttling your wife, where is it?. — A. It was just laid down at he place where she was, sir.

Q. Who knows about and who saw what had you done to your wife which caused her death? — A. Nobody knows about it and saw it, sir, I, alone.

Q. Is it not true that the reason why you killed your wife was that you made a preconcerted plan with your sister, Anselma Martin and your mother, Ciriaca Tomas to commit the crime — — A. No, sir, I have no companion, I am alone.

Q. Why did you treat your wife in that way? — A. I became obfuscated, is, when she placed the rope around my neck, and in turn, I tried the same in her person but, in so trying she died.

Q. Are you, therefore, very positive that the death of your wife, Laura Luiz, was caused by you in

having tightened the rope that was wound around her neck? — A. Yes, sir, that was the cause of her death, I have no doubt that I was the one who killed my wife, Laura Luiz, today August 1, 1948. I killed her in our toilet at barrio No. 12 Laoag.

Q. Have you some more to say ?- A. I say, no more, sir.

Q. Were you, in any manner compelled, threatened, maltreated or remunerated by somebody in having made this declaration of yours? — A. Absolutely, there was none, sir that compelled me, but I spontaneously made my declaration above, it being the whole truth that I committed against my wife, Laura Luiz.

Q. Are you willing to sign your name at the bottom and at the margin of your declaration — — A. Willingly, sir, because said declaration is what in truth and in fact I did, and in testimony hereof, I sign my name in the presence of attending witnesses this 1st day of August, 1948, at Laoag, Ilocos Norte.

Dr. Roman de la Cuesta, resident physician of the Ilocos Norte Provincial Hospital, performed an autopsy on the corpse of Laura and issued a certificate which reads as follows:

TO WHOM IT MAY CONCERN:

This is to certify that the undersigned performed an autopsy on the person one Laura Luiz Martin, on August 1, 1948, at 9 o'clock a.m. at the request of the Chief of Police of Laoag, Ilocos Norte, with the following findings:

(a) Acute dilatation, heart.

(b) Spleen, enlarged, malarial.

(c) Pregnancy, 8 month, female fetus.

(d) Almost circular contusion around the neck, but absent in the occipital region.

(e) No evidence of strangulation in the lungs.

In the opinion of the undersigned the cause of death was acute dilatation of the heart. (Heart failure.)

Dr. de la Cuesta testified that Laura must have died five or six hours before he examined her corpse at about nine o'clock in the morning of August 1; that the cause of death was heart failure due to fright or shock; that the deceased was eight months pregnant at the time of her death; that there was no expulsion of the fetus; and that the foetus must have alive at the time of the death of Laura.

At the trial the defendant testified that while he was moving his bowels in the toilet with his back

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toward the door of the same, he left that a rope was being put around his neck from behind. He forthwith snatched the rope and wound it around the neck of the person who had attempted to strange him upon knowing who that person was. The person fell and upon looking at the same he found that it was his wife.

This version cannot be believed, for although it was dark, his wife must have shouted or given some sign of who she was when she felt the rope tightening around her neck. Furthermore, this version is against that freely given by him in his spontaneous confession made before the chief of police and sworn to before the provincial fiscal. There is no reason for supposing that either the chief of police or the provincial fiscal had any motive for wringing from him a forced false confession.

As to the motive of the defendant, it may be found in the fact that the defendant married Laura unwillingly due to fear being sued, because he was suspected that he was not responsible for her pregnancy.

The appellant contends that the death of Laura was not due to the strangling, but to her heart disease. It should be noted, however that the heart failure was due to the fright or shock caused by the strangling, and consequently, the defendant was responsible for the death,

notwithstanding the fact that the victim was already sick. Had not the defendant strangled the deceased, the latter, notwithstanding her illness, would not have died. In other words, the defendant directly caused her death.

In the case of People vs. Reyes   (61 Phil. 341, 343) the Court held:

. . . A person is responsible for the consequences of his criminal act and even if the deceased had been shown to be suffering from a diseased heart (which was not shown), appellants assault being the proximate cause of the death, he would be responsible. (U.S.   vs.   Luciano, 2 Phil., 96 ; U.S.   vs.   Lugo & Lugo, 8 Phil., 80; U.S.   vs. Brobst, 14 Phil. 310; U.S.   vs.   Rodriguez, 23 Phil., 22 .)

In the case of U.S.   vs.   Brobst (14 Phil. 310) , the following doctrine was established:

Where death results as the direct consequences of the use of illegal violence, the mere fact that the diseased or weakened condition of the injured person contributed to his death, does not relieve the illegal aggressor of criminal responsibility. (Syllabus)

The trial court considered two mitigating circumstances in favor of the defendant: (1) that of unlawful aggression on the part of the

deceased without any sufficient provocation on the part of the defendant — which in this case is equivalent to incomplete self-defense on the part of the defendant, he should not have wound it around her neck and tightened it — and (2) the lack of instruction, without any aggravating circumstances to offset them, the penalty next lower in the degree should be imposed, which is that of reclusion temporal.

In view of the foregoing, the judgment appealed from is modified by imposing upon the appellant the penalty of from twelve (12) years of prision mayor to twenty (20) years of reclusion temporal, with the accessory penalties of the law, to indemnify the heirs of the deceased in the sum of P6,000, without subsidiary imprisonment in case on insolvency, and to pay the costs. It is so ordered.

Paras, C.J., Feria, Pablo, Bengzon, Tuason, and Montemayor, JJ., concur.

55. January 28, 1954

G.R. No. L-5775THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.AGUSTIN PIAMONTE, ET AL., defendants;GUILLERMO MASCARIÑAS alias ELMO and

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VICENTE JASME, JR., alias DODONG,defendants-appellants.

Office of the Solicitor General Juan R. Liwag and Assistant Solicitor General Guillermo E. Torres for appellee.Quiremon Alkuino for appellant Guillermo Mascariñas.Conrado G. Abiera for appellant Vicente Jasme, Jr.

BAUTISTA ANGELO, J.:

Agustin Piamonte, Guillermo Mascariñas, and Vicente Jasme Jr. were charged with robbery with homicide in the Court of First Instance of Leyte, and, after due trial, were found guilty and sentenced each to suffer reclusion perpetua, with the accessory penalties of the law, to indemnify jointly and severally the heirs of the deceased in the sum of P320, the amount stolen, plus the sum of P6,000, without subsidiary imprisonment in case of insolvency due to the nature of the penalty imposed, and to pay the costs. From this judgment, Guillermo Mascariñas and Vicente Jasme Jr. have appealed.

Early in the morning of October 28, 1951, a robbery was committed in the house of Magno Israel in barrio Gabas, municipality of Baybay, Leyte. In the course of the robbery Israel was seriously wounded and was brought to the

Western Leyte Hospital in Baybay for treatment. Upon being informed of the incident, the Chief of Police of Baybay sent a policeman to the hospital to find out what had happened. Policeman Macario Dawal found the wounded groaning because of the serious wounds he had received. Nevertheless, the policeman was able to get some statements from him as to the robbery which the policeman wrote on a typewriter upon his return to office. In the next morning, the Chief of Police and the Justice of Peace went to the hospital to verify the correctness of the statements attributed to the victim and when they arrived they found him restless, his face was pale, he was breathing hard, and his whole body was bandaged. His legs and hands were tied to his bed. The attending nurse informed the two officials that the medicine being administered to the patient was only to prolong his life. The Justice of the Peace read the written statements to the patient and after being sure that he understood them he was asked to ratify them. The patient did so under oath. In his affidavit, the patient, among other things, stated that of the person who went to his house in the morning in question he was only able to identify Guillermo Mascariñas who was long known to him. The robbers took away his cash amounting P320. He was not able to identify those who actually wounded him.

The revelation of Magno Israel gave rise to the arrest of Mascariñas who, upon being investigated, made a written confession (Exhibit F). He stated that early in the morning of October 28, 1951, he was invited by Agustin Piamonte and Vicente Jasme, Jr. to go to the house of Magno Israel to rob him. Since they were his friends he agreed. When they arrived at the house Piamonte went upstairs followed closely by Jasme, Jr. while he remained downstairs to guard the place. While he was thus guarding he noticed that Israel offered resistance and so his two companions assaulted him. When he heard the screams of Israel he was frightened and ran away and since then he never met again his companions.

The revelation of Mascariñas also gave rise to the arrest of Piamonte and Jasme, Jr. Upon being arrested, Piamonte was investigated and made also a written confession. He stated that in the afternoon of October 27, 1951, Mascariñas revealed to him his plan to rob the house of Magno Israel. While he and Jasme, Jr. were attending a dance at the Baybay National Agricultural School they met Mascariñas who told them that after the dance they would go home together and would proceed to the house they planned to rob. To this effect, Mascariñas borrowed the clothes of Jasme, Jr. so that he may not be recognized by Israel who knew him

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personally. When they arrived at the house of Israel, he and Mascariñas went upstairs and when he focused his flashlight on a trunk Mascariñas proceeded to ransack it. Israel was awakened by their presence and Mascariñas stabbed him several times. At this juncture, he (Piamonte) became afraid and ran downstairs followed by Mascariñas. This time, Jasme Jr. who was left downstairs, had already gone ahead on the road. On their way home and upon reaching the a bridge, Mascariñas took off the clothes which he borrowed from Jasme Jr. and returned them to him. Mascariñas used a hunting knife in stabbing his victim. He did not know how much money was taken by Mascariñas because the latter did not tell him about it.

Vicente Jasme Jr. was also arrested but refused to give any statement to the police. The evidence further shows that Magno Israel was operated on the very day he was brought to the hospital to save his life. The operation did him well but he had a stormy post-operative period. Sometime in December 19, 1951, he contracted a sickness known as mucuous colitis which developed because of his weak condition. He died on December 28.

Mascariñas, testifying in his defense, declared that after attending the dance held at the Baybay National Agricultural School he, Piamonte and

Jasme, Jr. went to the house of Magno Israel not to rob the latter but merely to escort Jasme Jr. who was the nephew of Israel. When they arrived Jasme, Jr. went up and then he left the premises. While he was gone for sometime he heard someone shouting for help but he thought that it was Jasme, Jr. who was being maltreated by his uncle for coming late. Later Piamonte joined him and both returned to their respective homes. As regards to his confessions, Mascariñas claimed that he signed id because policeman Aurelio Altivo compelled him to do so as otherwise he would send him to the constabulary headquarters at Ormoc City.

The defense of Vicente Jasme, Jr. consisted in a mere alibi. While he admitted having gone to the dance held at the Baybay National Agricultural School he declared that he did not meet there his co-accused Piamonte and Mascariñas. he claimed that he went home with a group of persons among whom one Macarangal, the drummer of the orchestra, and arrived home at 4:00 o'clock in the morning. He denied knowing Magno Israel or the place where he lived. He also said that one week before the dance, Piamonte came to his place to ask him whether he was willing to sell his pants and shirt and as he owed Piamonte P3.00 he agreed and gave his clothes to him.

There is no doubt that Mascariñas is guilty of the crime charged. His guilt is established not only by his own confession (Exhibit F) but also by the confessions of his co-accused Agustin Piamonte and Vicente Jasme, Jr. and the ante mortem declaration of the deceased, Magno Israel. In his confession, Mascariñas admitted not only the plan they had conceived to rob Magno Israel but also the part he had in the execution of said plan. This he reiterated in his testimony in court only that this time he gave the explanation that he merely accompanied Jasme, Jr. to the house of Israel who was his uncle and did nothing in connection with the robbery, but this is belied by the ante mortem declaration of the victim who pointed to him as one of those who entered his house and robbed him. There is no question that said declaration partakes of the nature of ante mortem as found by the lower court because it has been established that at the time it was taken the victim was in a very serious condition and would have succumbed if not because of the opportune medical treatment extended to him.

The claim of Mascariñas that he signed his written confession because policeman Aurelio Altivo threatened to send him to the constabulary headquarters at Ormoc City cannot be entertained, it appearing that the investigation of the accused was conducted by the Chief of

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Police and the only intervention of Altivo was to write his answers on a typewriter. This claim is also belied by the Justice of the Peace before whom the confession was signed who affirmed in court that said confession was signed by him voluntarily. And his testimony was corroborated by the Chief of Police. We do not find any justifiable reason to brush aside the testimony of these officials in the absence of any showing that they had testified for improper or personal reasons.

The same thing may be said with regard to appellant Vicente Jasme, Jr. His co-accused testified that this appellant went with them to the house of Magno Israel in the evening the latter was wounded only that to avoid being implicated they stated that their purpose in going to that house was merely to escort Jasme, Jr. who was a nephew of Israel. But we now see that their real purpose was not exactly the one above pointed out but to rob Israel in pursuance of a plan they had arranged the previous night, as clearly manifested in their extrajudicial confessions. If to this we add what Flaviana Escuadra testified that in the early morning of October 28, 1951, this appellant came to her house and left a pair of trousers and shirt which, upon inspection, were found to be tainted with blood, his guilt becomes strengthened.

That there is conspiracy among the three accused is evident. They were in the dance held at the Baybay National Agricultural School in the evening preceding the commission of the crime. After the dance, or early in the following day, they went home together and proceeded to the house of Magno Israel, and shortly thereafter the latter was found seriously wounded and robbed. This much appears in the testimony of these accused. It shows that they are the ones who could have possibly committed the act, but to save their skin they laid the blame on each other as regards the injuries inflicted on the deceased. This certainly cannot be sustained on the face of their suspicious behavior. There being conspiracy in the commission of the crime the confession of one is admissible and can be considered as corroborative evidence against the other. Thus, "it has been held that when extrajudicial confessions had been made by several persons charged with conspiracy and there could have been no collusion with reference to the several confessions, the fact that the statements were in all material respects identical, was confirmatory of the testimony of an accomplice." (People   vs.   Badilla, et al., 48 Phil., 718.)

The remaining question to be determined is: Has the deceased died as a result of the wounds inflicted upon him by the accused? It is true that

he did not die immediately after the infliction of the wounds and that he was able to survive for sometime because of the operation to which he was subjected and he medical treatment extended to him at the Western Leyte Hospital. But the fact remains that he did as a result of themucuous colitis he contracted because of his weak condition resulting from the wounds he had received. The doctors who attended him are agreed that this weakened condition which had caused disturbance in the functions of his intestines made it possible for him to contract mucuous colitis, which shows that, while said wounds were not the immediate cause, they were however the proximate cause of death. This is enough to make the accused responsible for the crime charged.

The crime committed is robbery with homicide punishable with reclusion perpetua to death (Article 294, paragraph 1, Revised Penal Code). Considering the aggravating circumstances of nocturnity and dwelling without any mitigating circumstance to offset it, the Solicitor General recommends that the maximum penalty be imposed upon the appellants. However, some members of the Court are of the opinion that in the light of the circumstances obtaining in this case, the penalty of reclusion perpetuawould be commensurate for the crime charged.

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Wherefore, the decision appealed from is affirmed, with the proportionate share of the costs.

Paras, C.J., Pablo, Bengzon, Montemayor, Reyes, Jugo and Labrador, JJ., concur.Padilla, J., concurs in the result.

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