1 Republic SUPREME Manila EN BANC G.R. No.

L-18924 October 19, 1922 PHILIPPINE ISLANDS, plaintiff-appellant, of the Philippines COURT

THE PEOPLE OF THE vs. WONG CHENG (alias WONG CHUN), defendant-appellee. Attorney-General Eduardo Gutierrez Repide for appellee. ROMUALDEZ, J.: Villa-Real

for

appellant.

In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of Manila, sustaining the demurrer presented by the defendant to the information that initiated this case and in which the appellee is accused of having illegally smoked opium, aboard the merchant vessel Changsa of English nationality while said vessel was anchored in Manila Bay two and a half miles from the shores of the city. The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the case. The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will or will not be erroneous according as said court has or has no jurisdiction over said offense. The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein involved, committed aboard merchant vessels anchored in our jurisdiction waters. 1awph!l.net There are two fundamental rules on this particular matter in connection with International Law; to wit, the French rule, according to which crimes committed aboard a foreign merchant vessels should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the peace and security of the territory; and the English rule, based on the territorial principle and followed in the United States, according to which, crimes perpetrated under such circumstances are in general triable in the courts of the country within territory they were committed. Of this two rules, it is the last one that obtains in this jurisdiction, because at present the theories and jurisprudence prevailing in the United States on this matter are authority in the Philippines which is now a territory of the United States. In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice Marshall said: . . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. . . . In United States vs. Bull (15 Phil., 7), this court held:

2 . . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or within the territorial waters of any other country, but when she came within three miles of a line drawn from the headlands, which embrace the entrance to Manila Bay, she was within territorial waters, and a new set of principles became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial sovereign subject to such limitations as have been conceded by that sovereignty through the proper political agency. . . . It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was said that: . . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction. It may not be easy at all times to determine which of the two jurisdictions a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in the regular way the consul has no right to interfere to prevent it. Hence in United States vs. Look Chaw (18 Phil., 573), this court held that: Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign vessel in transit in any local port, does not, as a general rule, constitute a crime triable by the courts of the Islands, such vessels being considered as an extension of its own nationality, the same rule does not apply when the article, the use of which is prohibited in the Islands, is landed from the vessels upon Philippine soil; in such a case an open violation of the laws of the land is committed with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, no court other than that established in the said place has jurisdiction of the offense, in the absence of an agreement under an international treaty. As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction or a part thereof, we find nothing to this effect so far as England is concerned, to which nation the ship where the crime in question was committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy says the following: There shall be between the territories of the United States of America, and all the territories of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall have liberty freely and securely to come with their ships and cargoes to all such places, ports and rivers, in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation respectively shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.) We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court not triable by or courts, because it being the primary object of our Opium Law to protect the inhabitants of the Philippines against the disastrous effects entailed by the use of this drug, its mere possession in such a ship, without being used in our territory, does not being about in the said territory those effects that our statute contemplates avoiding. Hence such a mere possession is not considered a disturbance of the public order. 2

3 But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of the public order here established, because it causes such drug to produce its pernicious effects within our territory. It seriously contravenes the purpose that our Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the Attorney-General aptly observes: . . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila in open defiance of the local authorities, who are impotent to lay hands on him, is simply subversive of public order. It requires no unusual stretch of the imagination to conceive that a foreign ship may come into the port of Manila and allow or solicit Chinese residents to smoke opium on board. The order appealed from is revoked and the cause ordered remanded to the court of origin for further proceedings in accordance with law, without special findings as to costs. So ordered. Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand and Johns, JJ., concur.

Republic SUPREME Manila SECOND DIVISION

of

the

Philippines COURT

G.R. No. 103119 October 21, 1992 SULPICIO vs. HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. INTOD, petitioner,

CAMPOS, JR., J.: Petitioner, Sulpicio Intod, filed this petition for review of the decision of the Court of Appeals 1 affirming in toto the judgment of the Regional Trial Court, Branch XIV, Oroquieta City, finding him guilty of the crime of attempted murder. From the records, we gathered the following facts. In the morning of February 4, 1979, Sulpicio Intod, Jorge Pangasian, Santos Tubio and Avelino Daligdig went to Salvador Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental and asked him to go with them to the house of Bernardina Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio and Daligdig had a meeting with Aniceto Dumalagan. He told Mandaya that he wanted Palangpangan to be killed because of a land dispute between them and that Mandaya should accompany the four (4) men, otherwise, he would also be killed. At about 10:00 o'clock in the evening of the same day, Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed with firearms, arrived at Palangpangan's house in Katugasan, Lopez Jaena, Misamis Occidental. At the instance of his companions, Mandaya pointed the location of Palangpangan's bedroom. Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said room. It turned out, however, that Palangpangan was in another City and her home was then occupied by her son-in-law and his family. No one was in the room when the accused fired the shots. No one was hit by the gun fire.

5 Petitioner and his companions were positively identified by witnesses. One witness testified that before the five men left the premises, they shouted: "We will kill you (the witness) and especially Bernardina Palangpangan and we will come back if (sic) you were not injured". 2 After trial, the Regional Trial Court convicted Intod of attempted murder. The court (RTC), as affirmed by the Court of Appeals, holding that Petitioner was guilty of attempted murder. Petitioner seeks from this Court a modification of the judgment by holding him liable only for an impossible crime, citing Article 4(2) of the Revised Penal Code which provides: Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal Responsibility shall be incurred: xxx xxx xxx 2. By any person performing an act which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment or on account of the employment of inadequate or ineffectual means. Petitioner contends that, Palangpangan's absence from her room on the night he and his companions riddled it with bullets made the crime inherently impossible. On the other hand, Respondent People of the Philippines argues that the crime was not impossible. Instead, the facts were sufficient to constitute an attempt and to convict Intod for attempted murder. Respondent alleged that there was intent. Further, in its Comment to the Petition, respondent pointed out that: . . . The crime of murder was not consummated, not because of the inherent impossibility of its accomplishment (Art. 4(2), Revised Penal Code), but due to a cause or accident other than petitioner's and his accused's own spontaneous desistance (Art. 3., Ibid.) Palangpangan did not sleep at her house at that time. Had it not been for this fact, the crime is possible, not impossible. 3 Article 4, paragraph 2 is an innovation 4 of the Revised Penal Code. This seeks to remedy the void in the Old Penal Code where: . . . it was necessary that the execution of the act has been commenced, that the person conceiving the idea should have set about doing the deed, employing appropriate means in order that his intent might become a reality, and finally, that the result or end contemplated shall have been physically possible. So long as these conditions were not present, the law and the courts did not hold him criminally liable. 5 This legal doctrine left social interests entirely unprotected. 6 The Revised Penal Code, inspired by the Positivist School, recognizes in the offender his formidability, 7 and now penalizes an act which were it not aimed at something quite impossible or carried out with means which prove inadequate, would constitute a felony against person or against property. 8 The rationale of Article 4(2) is to punish such criminal tendencies. 9 Under this article, the act performed by the offender cannot produce an offense against person or property because: (1) the commission of the offense is inherently impossible of accomplishment: or (2) the means employed is either (a) inadequate or (b) ineffectual. 10 That the offense cannot be produced because the commission of the offense is inherently impossible of accomplishment is the focus of this petition. To be impossible under this clause, the act intended by the offender must be by its nature 5

6 one impossible of accomplishment. 11 There must be either impossibility of accomplishing the intended act 12 in order to qualify the act an impossible crime. Legal impossibility occurs where the intended acts, even if completed, would not amount to a crime. 13 Thus: Legal impossibility would apply to those circumstances where (1) the motive, desire and expectation is to perform an act in violation of the law; (2) there is intention to perform the physical act; (3) there is a performance of the intended physical act; and (4) the consequence resulting from the intended act does not amount to a crime. 14 The impossibility of killing a person already dead 15 falls in this category. On the other hand, factual impossibility occurs when extraneous circumstances unknown to the actor or beyond his control prevent the consummation of the intended crime. 16 One example is the man who puts his hand in the coat pocket of another with the intention to steal the latter's wallet and finds the pocket empty. 17 The case at bar belongs to this category. Petitioner shoots the place where he thought his victim would be, although in reality, the victim was not present in said place and thus, the petitioner failed to accomplish his end. One American case had facts almost exactly the same as this one. In People vs. Lee Kong, 18 the accused, with intent to kill, aimed and fired at the spot where he thought the police officer would be. It turned out, however, that the latter was in a different place. The accused failed to hit him and to achieve his intent. The Court convicted the accused of an attempt to kill. It held that: The fact that the officer was not at the spot where the attacking party imagined where he was, and where the bullet pierced the roof, renders it no less an attempt to kill. It is well settled principle of criminal law in this country that where the criminal result of an attempt is not accomplished simply because of an obstruction in the way of the thing to be operated upon, and these facts are unknown to the aggressor at the time, the criminal attempt is committed. In the case of Strokes vs. State, 19 where the accused failed to accomplish his intent to kill the victim because the latter did not pass by the place where he was lying-in wait, the court held him liable for attempted murder. The court explained that: It was no fault of Strokes that the crime was not committed. . . . It only became impossible by reason of the extraneous circumstance that Lane did not go that way; and further, that he was arrested and prevented from committing the murder. This rule of the law has application only where it is inherently impossible to commit the crime. It has no application to a case where it becomes impossible for the crime to be committed, either by outside interference or because of miscalculation as to a supposed opportunity to commit the crime which fails to materialize; in short it has no application to the case when the impossibility grows out of extraneous acts not within the control of the party. In the case of Clark vs. State, 20 the court held defendant liable for attempted robbery even if there was nothing to rob. In disposing of the case, the court quoted Mr. Justice Bishop, to wit: It being an accepted truth that defendant deserves punishment by reason of his criminal intent, no one can seriously doubt that the protection of the public requires the punishment to be administered, equally whether in the unseen depths of the pocket, etc., what was supposed to exist was really present or not. The community suffers from the mere alarm of crime. Again: Where the thing intended 6

7 (attempted) as a crime and what is done is a sort to create alarm, in other words, excite apprehension that the evil; intention will be carried out, the incipient act which the law of attempt takes cognizance of is in reason committed. In State vs. Mitchell, 21 defendant, with intent to kill, fired at the window of victim's room thinking that the latter was inside. However, at that moment, the victim was in another part of the house. The court convicted the accused of attempted murder. The aforecited cases are the same cases which have been relied upon by Respondent to make this Court sustain the judgment of attempted murder against Petitioner. However, we cannot rely upon these decisions to resolve the issue at hand. There is a difference between the Philippine and the American laws regarding the concept and appreciation of impossible crimes. In the Philippines, the Revised Penal Code, in Article 4(2), expressly provided for impossible crimes and made the punishable. Whereas, in the United States, the Code of Crimes and Criminal Procedure is silent regarding this matter. What it provided for were attempts of the crimes enumerated in the said Code. Furthermore, in said jurisdiction, the impossibility of committing the offense is merely a defense to an attempt charge. In this regard, commentators and the cases generally divide the impossibility defense into two categories: legal versus factual impossibility. 22 In U.S. vs. Wilson 23 the Court held that: . . . factual impossibility of the commission of the crime is not a defense. If the crime could have been committed had the circumstances been as the defendant believed them to be, it is no defense that in reality the crime was impossible of commission. Legal impossibility, on the other hand, is a defense which can be invoked to avoid criminal liability for an attempt. In U.S. vs. Berrigan, 24 the accused was indicated for attempting to smuggle letters into and out of prison. The law governing the matter made the act criminal if done without knowledge and consent of the warden. In this case, the offender intended to send a letter without the latter's knowledge and consent and the act was performed. However, unknown to him, the transmittal was achieved with the warden's knowledge and consent. The lower court held the accused liable for attempt but the appellate court reversed. It held unacceptable the contention of the state that "elimination of impossibility as a defense to a charge of criminal attempt, as suggested by the Model Penal Code and the proposed federal legislation, is consistent with the overwhelming modern view". In disposing of this contention, the Court held that the federal statutes did not contain such provision, and thus, following the principle of legality, no person could be criminally liable for an act which was not made criminal by law. Further, it said: Congress has not yet enacted a law that provides that intent plus act plus conduct constitutes the offense of attempt irrespective of legal impossibility until such time as such legislative changes in the law take place, this court will not fashion a new non-statutory law of criminal attempt. To restate, in the United States, where the offense sought to be committed is factually impossible or accomplishment, the offender cannot escape criminal liability. He can be convicted of an attempt to commit the substantive crime where the elements of attempt are satisfied. It appears, therefore, that the act is penalized, not as an impossible crime, but as an attempt to commit a crime. On the other hand, where the offense is legally impossible of accomplishment, the actor cannot be held liable for any crime neither for an attempt not for an impossible crime. The only reason for this is that in American law, there is no such thing as an impossible crime. Instead, it only recognizes impossibility as a defense to a crime charge that is, attempt. This is not true in the Philippines. In our jurisdiction, impossible crimes are recognized. The impossibility of accomplishing the criminal intent is not merely a defense, but an act penalized by itself. Furthermore, the phrase 7

8 "inherent impossibility" that is found in Article 4(2) of the Revised Penal Code makes no distinction between factual or physical impossibility and legal impossibility. Ubi lex non distinguit nec nos distinguere debemos. The factual situation in the case at bar present a physical impossibility which rendered the intended crime impossible of accomplishment. And under Article 4, paragraph 2 of the Revised Penal Code, such is sufficient to make the act an impossible crime. To uphold the contention of respondent that the offense was Attempted Murder because the absence of Palangpangan was a supervening cause independent of the actor's will, will render useless the provision in Article 4, which makes a person criminally liable for an act "which would be an offense against persons or property, were it not for the inherent impossibility of its accomplishment . . ." In that case all circumstances which prevented the consummation of the offense will be treated as an accident independent of the actor's will which is an element of attempted and frustrated felonies. WHEREFORE, PREMISES CONSIDERED. the petition is hereby GRANTED, the decision of respondent Court of Appeals holding Petitioner guilty of Attempted Murder is hereby MODIFIED. We hereby hold Petitioner guilty of an impossible crime as defined and penalized in Articles 4, paragraph 2, and 59 of the Revised Penal Code, respectively. Having in mind the social danger and degree of criminality shown by Petitioner, this Court sentences him to suffer the penalty of six (6) months of arresto mayor, together with the accessory penalties provided by the law, and to pay the costs. SO ORDERED. Feliciano, Regalado and Nocon, JJ., concur. Narvasa, C.J., is on leave.

Republic SUPREME Manila EN BANC G.R. No. L-48796 June 11, 1981

of

the

Philippines COURT

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DIEGO OPERO Y COSIPAG et al., accused; DIEGO OPERA Y COSIPAG, defendant-appellant.

PER CURIAM: Automatic review of the death sentence imposed on Diego Opero for robbery with homicide with which he was charged in the Circuit Criminal Court of Manila, together with Reynaldo Lacsinto and Milagros Villegas, who, however, did not appeal their conviction with much lesser penalty, the last-named, as a mere accessory after the fact. Another accused, Asteria Avila was acquitted. 8

9 In his brief, appellant raised only the question of the propriety of the imposition of the death penalty on him, with the following assignments of error: 1. THE LOWER COURT ERRED IN NOT CONSIDERING ARTICLE 4, PARAGRAPH 1 OF THE REVISED PENAL CODE IN DETERMINING THE CRIMINAL LIABILITY OF THE ACCUSED. 2. THE TRIAL COURT ERRED IN NOT CONSIDERING ARTICLE 49, PARAGRAPH 1 OF THE REVISED PENAL CODE IN IMPOSING THE PENALTY ON THE ACCUSED For the facts of the case, the narration of which in both the People's brief and that of appellant does not vary as to the essential ones, We could very well quote from the Appellee's brief, being the more comprehensive and complete, the following: At about 4:00 o'clock in the morning of April 27, 1978, Salvador Oliver, a GSIS security guard assigned to the House International Hotel at Ongpin Street, Binondo, Manila, was informed by Demetrio Barcing another security guard, that the latter picked up a little girl about three years old loitering at the second floor of the building. Rafael Ordona a janitor of the House International Hotel, told Oliver that the little girl is residing at Room 314 of the hotel. Oliver called up Room 314 by telephone and when nobody answered, he and Barcing brought the little girl to said Room 314 (pp- 6, 7, & 8, t.s.n., June 15, 1978). Upon reaching Room 314, Oliver knocked at the door, and when nobody answered, he pushed the door open but he smelled foul odor emanating from the room. Oliver covered his nose with a handkerchief and together with Barcing and the little girl, they entered the room where they saw prostrate on a bed a dead person with the face down and both feet tied. Oliver called up the homicide division of the Manila Police. Patrolman Fajardo who was assigned to investigate the report of Oliver, together with some funeral parlor men arrived at the scene, and they saw a small baby crying and trying to get out of a crib near the bed of the dead person. (pp. 9, 10 & 11, t.s.n., Id). The dead body at Room 314 of the House International Hotel was that of Liew Soon Ping, Room 314 had been ransacked and personal belongings thrown all around. The hands and feet of the dead person were tied and the body was bloated. A towel was tied around the mouth of the victim. Photographs of the dead person and the condition of the room were taken under Patrolman Fajardos supervision (pp. 19, 20, 21, 22, 23 & 24, t.s.n., June 15, 1978). Patrolman Fajardo came to know that the occupants of Room 314 were Dr. Hong, his wife Liew Soon Ping who is the victim in this case, their three children and two maids, namely, Mila and Ester (pp. 26 & 27, t.s.n., Id). After conducting a preliminary inquiry around the vicinity of the incident, Patrolman Fajardo made an advance report (Exh. "O"; pp. 32, 33 & 34, rec.) naming therein three suspects, namely, Diego Opero, Milagros Villegas, Asteria Avila and a fourth unidentified suspect. The names of these suspects were furnished by neighbors of the victim to Patrolman Fajardo (pp- 28 & 29, t.s.n.,Id.). After establishing the Identity of the suspects, a follow up team of Manila Policemen composed of Patrolmen Luis Lim and Servande Malabute was formed to further investigate the case. A separate police team composed of Sgt. Yanguiling and several policemen were sent to Leyte and Samar to track down the suspects (pp. 30 & 31, t.s.n., Id.). "Dr. Hong, the victim's husband who was in Cebu when the incident in his residence was committed was contacted by the police and informed about the death of his wife.

10 Dr. Hong came back immediately from Cebu and reported to the police. He (Dr. Hong) made an inventory of the personal effects found missing in his residence. valued at P30,221.00 (pp. 31, 32 & 33, t.s.n Id; Exhs. 'R' and 'R-l'). While the case was under investigation, the homicide division of the Manila Police, received a radio message (Exh. "T-l", p. 40, rec.) relayed thru Col. Narciso Cabrera, Chief of the Detective Bureau of the Manila Police, that Reynaldo Lacsinto one of the suspects could be found in a school house in Moriones, Tondo, Manila. Another radio message (Exh. "T", p. 41, rec.) was received by the police that two other suspects in the case, namely, Diego Opero and Asteria Avila were picked up by the Samar P.C. and some of the missing articles, namely, one (1) camera, flashlight, bill fold, and other personal belongings were recovered from them (pp. 35 & 36, t.s.n., Id). Reynaldo Lacsinto was taken to police headquarters and after appraising him of his rights under the constitution, his statement was taken in the presence of his father (pp. 37, 38 & 39, t.s.n., Id; Exhs. "U" & "U-l", pp. 42, 43, 44, 45, 46, 47 & 48, rec,). In his said statement to the police, Lasinto admitted his participation and narrated in detail the commission of the robbery in Room 314 of the House International Hotel. The Samar P.C. turned over three other suspects, namely Diego Opero, Milagros Villegas and Asteria Avila to Sgt. Yanguiling who brought said suspects to Manila and turned them over to the homicide division of the Manila Police, together with some of the stolen articles (pp. 31 & 32, t.s.n., June 16, 1978). Statements of these three suspects (Exhibits "B", "C", and "D", respectively) taken by the Samar P.C. were also turned over by Sgt. Yanguiling to the homicide division (pp. 34 & 35, t.s.n. Id). Opero was investigated further at the Manila Police Headquarters and he gave a supplemental statement (Exh. "FF", pp. 70-74, rec.; p. 36, t. s.n. Id) admitting that he had robbed the victim and Identified some of the missing articles recovered from his possession (pp. 41 & 42, t.s.n. Id). He described in detail how he planned the robbery and named the rest of his coaccused as willing participants. He also narrated in his said supplemental statement that he and his co-accused Lacsinto subdued the victim by assaulting her, tying up her hands and feet stabbing her and stuffing her mouth with a piece of pandesal (pp. 70- 74, rec.). In her statement to the Manila police (Exh. 'GG', pp. 74 & 75, rec.) Milagros Villegas Identified the stolen clothes which were given to her by Opero. (pp. 44, 45 & 46, t. s. n. Id) The third suspect, Asteria Avila told the Manila police that she was not a party to the crime and upon advice of her lawyer she did not give any further statement. (p. 47, t. S. n. Id) A reenactment of the crime at the crime scene was held under the direction of Opero portraying - his role, with Lacsinto depicting his part, and pictures of the reenactment were taken (pp. 51, 52, 53, 54, 55, 56, 57, 58, 59 & 60, t. s.n. Id; pp. 79-99, incl., rec.). The body of the victim Liew Soon Ping was autopsied by Dr. Angelo Singian, then Chief of the Medico Legal Division of the Western Police District. The body was Identified by the victim's husband. Dr. Singian examined the body of the victim and issued a death certificate (Exh. "AA"), and the necropsy report (Exh. 'BB'), with the following findings: 1) a pale yellowish band across the eyes of the victim caused by the application of a towel, or broad piece of cloth across the eyes; 2) a pale yellowish band across the mouth caused by a similar material as the one applied across the victim's eyes, which was tied across the mouth; 3) contusion and hematoma on the upper and lower lips caused by a blunt instrument; 4) abrasions on the right side of the chin; 5) broad linear mark of clothing material on the neck; 6) cord or 10

11 ligature marks on the left and right arm, indicating that both arms were tied; 7) abdomen distended with gas, due to decomposition; 8) epiglotis, hematoma and contusion on the right side of the tongue; 9) contusions and hematoma on the right cheek; 10) superficial stab wound measuring 0.8 c.m. on the right side of the chin caused by a sharp bladed instrument; 1 1) superficial stab wound on the midaxilliary line caused by a sharp bladed instrument: 12) stab wound on the left forearm: 13) cord markings on both feet. Internal findings reveal an impacted bolus of white bread measuring 3 x 2.5 cm in the oropharynx. The tongue has contusion on the right lateral side and an abrasion across the middle portion. The larynx and trachea are markedly congested. The cause of death was due to asphyxiation by suffocation with an impacted bolus into the oropharynx and compression of the neck with a broad clothing around the neck (pp. 6-18, incl., t. s. n. June 16,1978; Exh. "BB" pp. 62 & 63, rec.). In his first assignment of error, appellant advances the theory that he never intended to kill the deceased, his intention being merely to rob her, for if indeed he had the intention to kill her, he could have easily done so with the knife, and therefore, his liability should be only for robbery. Appellant's theory finds no basis in the law or in jurisprudence. It was been repeatedly held that when direct and intimate connection exists between the robbery and the killing, regardless of which of the two precedes the other, or whether they are committed at the same time, the crime committed is the special complex crime of robbery with homicide. 1 If the circumstances would indicate no intention to kill, as in the instant case were evidently, the intention is to prevent the deceased from making an outcry, and so a "pandesal" was stuffed into her mouth, the mitigating circumstance of not having intended to commit so grave a wrong may be appreciated. 2 The stuffing of the "pandesal" in the mouth would not have produced asphyxiation had it not slid into the neckline, "caused by the victim's own movements, " according to Dr. Singian. The movements of the victim that caused the "pandesal" to slide into the neckline were, however, attributable to what appellant and his co-accused did to the victim, for if they did not hogtie her, she could have easily removed the "pandesal" from her mouth and avoided death by asphyxiation. It may not avail appellant to contend that the death was by mere accident for even if it were so, which is not even beyond doubt for the sliding of the pandesal into the neckline to produce asphyxiation could reasonably have been anticipated, it is a settled doctrine that when death supervenes by reason or on the occasion of the robbery, it is immaterial that the occurrence of death was by mere accident. 3 What is important and decisive is that death results by reason or on the occasion of the robbery. 4 These Spanish doctrines were cited by this Court in People vs. Mangulabnan, et al., 99 Phil. 992. Appellant would also have Article 49, paragraph I of the Revised Penal Code apply to him, and faults the court a quo for having failed to do so. The provision cited reads: 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 shall be observed: 1. If the penalty prescribed for the felony committed be higher than that corresponding to the offense which the accused intended to commit, the penalty corresponding to the latter shall be imposed in its maximum period. xxx xxx xxx.

11

12 The foregoing provision has been applied only to cases when the crime committed befalls a different person from the one intended to be the victim. This was the explicit ruling in the case of People vs. Albuquerque, 59 Phil. 150-153, citing decisions of he Supreme Court of Spain." 5 In the instant case, the intended victim, not any other person, was the one killed, as a result of an intention to rob, as in fact appellant and his co-accused, did rob the deceased. As stated earlier, what may be appreciated in appellant's favor is only the mitigating circumstance of not having intended to commit so grave a wrong as that committed, under paragraph 3 of Article 13 of the Revised Penal Code, an entirely different situation from that contemplated under paragraph 1, Article 49 of the same Code, where as already explained, the different felony from that intended, befalls someone different from the intended victim, as when the person intended to be killed is a stranger to the offender, but the person actually killed is the offender's father, thereby making the intended felony which is homicide different from the crime actually committed which is parricide. Notwithstanding the presence of the mitigating circumstance of not having intended to commit so grave a wrong as that comitted, there still remains one aggravating circumstance to consider, after either one of the two aggravating circumstances present, that of superior strength and dwelling, is offset by the mitigating circumstance aforesaid. The higher of the imposable penalty for the crime committed, which is reclusion perpetua to death, should therefore be the proper penalty to be imposed on appellant. 'This is the penalty of death as imposed by the lower court. WHEREFORE, the judgment appealed from being in accordance with law and the evidence, except as to the nonappreciation of the mitigating circumstance of having no intention to commit so grave a wrong as that committed, which nevertheless does not call for the modification of the penalty of death as imposed by the lower court, is hereby affirmed. Cost de oficio. SO ORDERED. Teehankee, Barredo, Makasiar, Aquino, Concepcion Jr., Fernandez, Guerrero, Abad Santos and De Castro, Jr., concur. Fernando, CJ., took no part. Melencio-Herrera, J., concurs in the result.

Republic SUPREME Manila

of

the

Philippines COURT

12

13 SECOND DIVISION G.R. No. 74433 September 14, 1987 PEOPLE OF vs. FRANCISCO ABARCA, accused-appellant. THE PHILIPPINES, plaintiff-appellee,

SARMIENTO, J.: This is an appeal from the decision of the Regional Trial Court of Palo, Leyte, sentencing the accused-appellant Francisco Abarca to death for the complex crime of murder with double frustrated murder. The case was elevated to this Court in view of the death sentence imposed. With the approval of the new Constitution, abolishing the penalty of death and commuting all existing death sentences to life imprisonment, we required the accused-appellant to inform us whether or not he wished to pursue the case as an appealed case. In compliance therewith, he filed a statement informing us that he wished to continue with the case by way of an appeal. The information (amended) in this case reads as follows: xxx xxx xxx The undersigned City Fiscal of the City of Tacloban accuses Francisco Abarca of the crime of Murder with Double Frustrated Murder, committed as follows: That on or about the 15th day of July, 1984, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill and with evident premeditation, and with treachery, armed with an unlicensed firearm (armalite), M-16 rifle, did then and there wilfully, unlawfully and feloniously attack and shot several times KHINGSLEY PAUL KOH on the different parts of his body, thereby inflicting upon said KHINGSLEY PAUL KOH gunshot wounds which caused his instantaneous death and as a consequence of which also caused gunshot wounds to LINA AMPARADO and ARNOLD AMPARADO on the different parts of their bodies thereby inflicting gunshot wounds which otherwise would have caused the death of said Lina Amparado and Arnold Amparado, thus performing all the acts of execution which should have produced the crimes of murders as a consequence, but nevertheless did not produce it by reason of causes independent of his will, that is by the timely and able medical assistance rendered to Lina Amparado and Arnold Amparado which prevented their death. 1 xxx xxx xxx On arraignment, the accused-appellant pleaded not guilty. The Solicitor General states accurately the facts as follows: Khingsley Paul Koh and the wife of accused Francisco Abarca, Jenny, had illicit relationship. The illicit relationship apparently began while the accused was in Manila reviewing for the 1983 Bar examinations. His wife was left behind in their residence in Tacloban, Leyte (pp. 45-47, 65, tsn, Sept. 24, 1984).

13

14 On July 15, 1984, the accused was in his residence in Tacloban, Leyte. On the morning of that date he went to the bus station to go to Dolores, Eastern Samar, to fetch his daughter. However, he was not able to catch the first trip (in the morning). He went back to the station in the afternoon to take the 2:00 o'clock trip but the bus had engine trouble and could not leave (pp. 5-8, tsn, Nov. 28, 1985). The accused, then proceeded to the residence of his father after which he went home. He arrived at his residence at the V & G Subdivision in Tacloban City at around 6:00 o'clock in the afternoon (pp. 8-9, tsn, Id.). Upon reaching home, the accused found his wife, Jenny, and Khingsley Koh in the act of sexual intercourse. When the wife and Koh noticed the accused, the wife pushed her paramour who got his revolver. The accused who was then peeping above the built-in cabinet in their room jumped and ran away (pp. 9-13, tsn, Id.). The accused went to look for a firearm at Tacloban City. He went to the house of a PC soldier, C2C Arturo Talbo, arriving there at around 6:30 p.m. He got Talbo's firearm, an M-16 rifle, and went back to his house at V & G Subdivision. He was not able to find his wife and Koh there. He proceeded to the "mahjong session" as it was the "hangout" of Kingsley Koh. The accused found Koh playing mahjong. He fired at Kingsley Koh three times with his rifle (pp. 13-19, tsn, Id.). Koh was hit. Arnold and Lina Amparado who were occupying a room adjacent to the room where Koh was playing mahjong were also hit by the shots fired by the accused (pp. 34-49, tsn, Sept. 24, 1984). Kingsley Koh died instantaneously of cardiorespiratory arrest due to shock and hemorrhage as a result of multiple gunshot wounds on the head, trunk and abdomen (pp. 28-29, tsn, Sept. 24, 1984; see also exh. A): Arnold Amparado was hospitalized and operated on in the kidney to remove a bullet (pp. 17-23, tsn, Oct. 17, 1984; see also exh. C). His wife, Lina Amparado, was also treated in the hospital as she was hit by bullet fragments (p. 23, tsn, Id.). Arnold Amparado who received a salary of nearly P1,000.00 a month was not able to work for 1-1/2 months because of his wounds. He spent P15,000.00 for medical expenses while his wife spent Pl,000.00 for the same purpose (pp. 24-25, tsn, Id. ). 2 On March 17, 1986, the trial court rendered the appealed judgment, the dispositive portion whereof reads as follows: xxx xxx xxx WHEREFORE, finding the accused, Francisco Abarca guilty beyond reasonable doubt of the complex crime of murder with double frustrated murder as charged in the amended information, and pursuant to Art. 63 of the Revised Penal Code which does not consider the effect of mitigating or aggravating circumstances when the law prescribes a single indivisible penalty in relation to Art. 48, he is hereby sentenced to death, to indemnify the heirs of Khingsley Paul Koh in the sum of P30,000, complainant spouses Arnold and Lina Amparado in the sum of Twenty Thousand Pesos (P20,000.00), without subsidiary imprisonment in case of insolvency, and to pay the costs. It appears from the evidence that the deceased Khingsley Paul Koh and defendant's wife had illicit relationship while he was away in Manila; that the accused had been deceived, betrayed, disgraced and ruined by his wife's infidelity which disturbed his reasoning faculties and deprived him of the capacity to reflect upon his acts. Considering all these circumstances this court believes the accused Francisco Abarca is deserving of executive clemency, not of full pardon but of a substantial if not a radical reduction or commutation of his death sentence. Let a copy of this decision be furnished her Excellency, the President of the Philippines, thru the Ministry of Justice, Manila. 14

15 SO ORDERED. 3 xxx xxx xxx The accused-appellant assigns the following errors committed by the court a quo: I. IN CONVICTING THE ACCUSED FOR THE CRIME AS CHARGED INSTEAD OF ENTERING A JUDGMENT OF CONVICTION UNDER ARTICLE 247 OF THE REVISED PENAL CODE; II. IN FINDING THAT THE KILLING WAS AMENDED BY THE QUALIFYING CIRCUMSTANCE OF TREACHERY. 4 The Solicitor General recommends that we apply Article 247 of the Revised Penal Code defining death inflicted under exceptional circumstances, complexed with double frustrated murder. Article 247 reads in full: ART. 247. Death or physical injuries inflicted under exceptional circumstances. Any legally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers, while the daughters are living with their parents. Any person who shall promote or facilitate prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article. We agree with the Solicitor General that the aforequoted provision applies in the instant case. There is no question that the accused surprised his wife and her paramour, the victim in this case, in the act of illicit copulation, as a result of which, he went out to kill the deceased in a fit of passionate outburst. Article 247 prescribes the following elements: (1) that a legally married person surprises his spouse in the act of committing sexual intercourse with another person; and (2) that he kills any of them or both of them in the act or immediately thereafter. These elements are present in this case. The trial court, in convicting the accused-appellant of murder, therefore erred. Though quite a length of time, about one hour, had passed between the time the accused-appellant discovered his wife having sexual intercourse with the victim and the time the latter was actually shot, the shooting must be understood to be the continuation of the pursuit of the victim by the accused-appellant. The Revised Penal Code, in requiring that the accused "shall kill any of them or both of them . . . immediately" after surprising his spouse in the act of intercourse, does not say that he should commit the killing instantly thereafter. It only requires that the death caused be the proximate result of the outrage overwhelming the accused after chancing upon his spouse in the basest act of infidelity. But the killing should have been actually motivated by the same blind impulse, and must not have been influenced by external factors. The killing must be the direct by-product of the accused's rage. It must be stressed furthermore that Article 247, supra, does not define an offense. 5 In People v. Araque, 6 we said: 15

16 xxx xxx xxx As may readily be seen from its provisions and its place in the Code, the above-quoted article, far from defining a felony, merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment to a legally married person or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury. Thus, in case of death or serious physical injuries, considering the enormous provocation and his righteous indignation, the accused who would otherwise be criminally liable for the crime of homicide, parricide, murder, or serious physical injury, as the case may be is punished only withdestierro. This penalty is mere banishment and, as held in a case, is intended more for the protection of the accused than a punishment. (People vs. Coricor, 79 Phil., 672.) And where physical injuries other than serious are inflicted, the offender is exempted from punishment. In effect, therefore, Article 247, or the exceptional circumstances mentioned therein, amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment at all. A different interpretation, i.e., that it defines and penalizes a distinct crime, would make the exceptional circumstances which practically exempt the accused from criminal liability integral elements of the offense, and thereby compel the prosecuting officer to plead, and, incidentally, admit them, in the information. Such an interpretation would be illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be an integral element of the crime charged. Only "acts or omissons . . . constituting the offense" should be pleaded in a complaint or information, and a circumstance which mitigates criminal liability or exempts the accused therefrom, not being an essential element of the offense charged-but a matter of defense that must be proved to the satisfaction of the court-need not be pleaded. (Sec. 5, Rule 106, Rules of Court; U.S. vs. Campo, 23 Phil., 368.) That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provisions (Chapter VIII) of Title VIII covering crimes against persons. There can, we think, hardly be any dispute that as part of the general provisions, it could not have possibly provided for a distinct and separate crime. xxx xxx xxx We, therefore, conclude that Article 247 of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another or the infliction of serious physical injuries under the circumstances therein mentioned. ... 7 xxx xxx xxx Punishment, consequently, is not inflicted upon the accused. He is banished, but that is intended for his protection. 8 It shall likewise be noted that inflicting death under exceptional circumstances, not being a punishable act, cannot be qualified by either aggravating or mitigating or other qualifying circumstances, We cannot accordingly appreciate treachery in this case. The next question refers to the liability of the accused-appellant for the physical injuries suffered by Lina Amparado and Arnold Amparado who were caught in the crossfire as the accused-appellant shot the victim. The Solicitor General recommends a finding of double frustrated murder against the accused-appellant, and being the more severe offense, proposes the imposition of reclusion temporal in its maximum period pursuant to Article 48 of the Revised Penal Code. This is where we disagree. The accused-appellant did not have the intent to kill the Amparado couple. Although as a 16

17 rule, one committing an offense is liable for all the consequences of his act, that rule presupposes that the act done amounts to a felony. 9 But the case at bar requires distinctions. Here, the accused-appellant was not committing murder when he discharged his rifle upon the deceased. Inflicting death under exceptional circumstances is not murder. We cannot therefore hold the appellant liable for frustrated murder for the injuries suffered by the Amparados. This does not mean, however, that the accused-appellant is totally free from any responsibility. Granting the fact that he was not performing an illegal act when he fired shots at the victim, he cannot be said to be entirely without fault. While it appears that before firing at the deceased, he uttered warning words ("an waray labot kagawas,") 10that is not enough a precaution to absolve him for the injuries sustained by the Amparados. We nonetheless find negligence on his part. Accordingly, we hold him liable under the first part, second paragraph, of Article 365, that is, less serious physical injuries through simple imprudence or negligence. (The records show that Arnold Amparado was incapacitated for one and one-half months; 11 there is no showing, with respect to Lina Amparado, as to the extent of her injuries. We presume that she was placed in confinement for only ten to fourteen days based on the medical certificate estimating her recovery period.) 12 For the separate injuries suffered by the Amparado spouses, we therefore impose upon the accused-appellantarresto mayor (in its medium and maximum periods) in its maximum period, arresto to being the graver penalty (than destierro). 13 WHEREFORE, the decision appealed from is hereby MODIFIED. The accused-appellant is sentenced to four months and 21 days to six months of arresto mayor. The period within which he has been in confinement shall be credited in the service of these penalties. He is furthermore ordered to indemnify Arnold and Lina Amparado in the sum of P16,000.00 as and for hospitalization expense and the sum of P1,500.00 as and for Arnold Amparado's loss of earning capacity. No special pronouncement as to costs. IT IS SO ORDERED. Yap (Chairman), Melencio-Herrera, Paras, and Padilla JJ., concur.

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18

Republic SUPREME Manila EN BANC G.R. No. L-3853 October 19, 1907

of

the

Philippines COURT

THE vs. JUAN VILLANUEVA, defendant-appellant. F. de la Attorney-General Araneta, for appellee.

UNITED

STATES, plaintiff-appellee,

Cantera,

for

appellant.

TORRES, J.: It appears from the proceedings in the case that, before sunrise on January 1, 1907, one Juan Villanueva and two other unknown individuals repaired to the neighborhood of a house occupied by Umali and his wife Olan, and with loud voices, awakened and called out to the inmates to open the door of the house. Policarpio Umali, the husband, answered the call, opened the door leading to the porch (azotea), stepped out, and inquired of the callers the purpose of their errand. The reply came in the form of a blow on Policarpio's left side from the butt end of a pistol, given by a man in the porch who rushed upon Policarpio and who subsequently was recognized by him as the defendant, Villanueva. Instantly, a second man stood by Policarpio's side threatening his life if he dared to move, while a third stood in the yard below. Then Villanueva entered the house and ordered that a lamp be lit and, by intimidation and force, caused Manuela Olan to give up what money there was in the house. And, as she only gave him P6, she was instantly dragged below and outside by Villanueva, who there by force did lie with her; this is according to the woman's statement. Then Villanueva returned to and ransacked the house, seizing this time a bolo, a penknife, some dry goods, and other effects which were in the house. Then he went across to Saturnina Arellano's house in quest of money, returning after some time to the complainant's house, proceeded and to tie and bind Policarpio's arms behind him and finally tied him to an upright inside the house. In this position the defendant pulled Policarpio by the legs and scraped his shins with the butt of the pistol he carried and demanded more money. Upon the loosening of the knots of the rope Policarpio fell to the ground face downward, thereby producing on his side and shins bruises and other painful injuries. 18

19 The complaining witnesses were able to recognize the defendant, Juan Villanueva, by aid of the moonlight and the little lamp burning inside the house. Aside from this fact, the defendant is a relative of Manuela Olan, and her husband knew him personally for three years. Saturnina Arellano also knew the defendant, although none of them were able to recognize the second or third man with him. After the hearing of the cause upon the complaint filed by the said provincial fiscal the trial court, on January 24, 1907, found the defendant guilty as charged and sentenced him to serve a term of four years of presidio correccional, to the restitution to the said Policarpio Umali and his wife of all of the property taken including the P6 and the household articles enumerated, or in default of the articles to pay them the sum of P20, and, in case of insolvency, to the subsidiary imprisonment; and further to the accessory penalties and the costs of the suit. From this sentence the defendant appealed. The facts as brought out in the trial are conclusive evidence of and constitute the crime of the robbery of P6 and several articles of household use found on the premises. They also prove that the robbery was executed with violence and intimidation of the persons of the injured parties, such as violence and intimidation being amenable to articles 502 and 503, No 5, of the Penal Code; that the inmates of the dwelling, in the perpetration of the robbery, were subjected to maltreatment at the hands of the robbers, and further, if the statements of Manuela Olan are true, that she was the victim of an attempt upon her honor on the part of the defendant. Of the three men who perpetrated the crime the defendant, Juan Villanueva, was the only robber who had been recognized and apprehended; the defendant, upon being charged with the commission of the crime, entered a plea of not guilty. But, notwithstanding his denial and exculpatory allegations he offered at the trial, the evidence adduced is sufficient proof of his guilt. It is clearly proven that Villanueva was the author and principal of the robbery together with two other unknown individuals, albeit he tried his best to prove an alibi through the testimony of witnesses who appeared in his behalf, to wit, that he was supposedly sick in bed at the time and therefore could not leave the house nor yet commit the crime. With due regard for the weight of the evidence introduced at the trial both by the prosecution and the defense, the mind is perforce bound to heed, in accordance with the principles of sound reasoning and common sense, the preponderance and weight of the evidence produced by the prosecution, inasmuch as the defendant was known to the three complaining witnesses and is in fact related to one of them, Manuela Olan, to whose niece he is married. The defendant himself has admitted the fact that Policarpio Umali had known him for the last three years, and that Saturnina Arellano, a neighbor, also knew him. So that, if on the night in question the moon was shining and there was a light burning inside the house in which the robbery was being committed, and the defendant had crossed over to Saturnina's house, returned and remained in Umali's for about one-half hour, during which he tied and bound with a rope and otherwise maltreated and then suspended Policarpio to an upright or pillar therein contained, it is but just to consider the evidence produced by the prosecution as being of greater value and weight. This evidence remained all throughout unimpaired, markedly consistent with the statement of facts and without discrepancies and contradictions while under the scrutiny of the cross-examination by counsel for the defense. lawphil.net There is no legal reason, therefore, why the preponderance and weight of such evidence in favor of the prosecution as against the defendant, in the face of his attempt to shirk the responsibility of the crime, should not be acknowledged by this court. In the commission of this crime the concurrence of two aggravating circumstances, 15 and 20, article 10, of the Penal Code, is to be considered, with no mitigating circumstance present, because the robbery was committed late at night and in the dwelling house of the persons robbed. Accordingly, the proper penalty is that of the maximum degree, and as for the defendant's racial exemption by article 11 of the Penal Code, it is not available since the crime was directed against the property. 19

20 For the reasons hereinbefore stated, we are of the opinion that the sentence of the court below should be affirmed, and we sentence the defendant, Juan Villanueva, to ten years of presidio mayor to the accessory penalties as imposed in article 57 of the Penal Code, to restore the articles taken, or, in default thereof, to pay the sum of P20, the value of the property, to the complaining witnesses together with the P6 in cash taken by the robbers, without subsidiary imprisonment in case of insolvency, and to pay the costs of this instance. So ordered. Arellano, C.J., Johnson, Willard and Tracey, JJ., concur.

Republic SUPREME Manila EN BANC G.R. No. L-5887 December 16, 1910

of

the

Philippines COURT

THE UNITED vs. LOOK CHAW (alias LUK CHIU), defendant-appellant. Thos. D. Attorney-General Villamor for appellee. Aitken for

STATES, plaintiff-appellee,

appellant.

ARELLANO, C. J.: The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated that he "carried, kept, possessed and had in his possession and control, 96 kilogrammes of opium," and that "he had been surprised in the act of selling 1,000 pesos worth prepared opium." The defense presented a demurrer based on two grounds, the second of which was the more than one crime was charged in the complaint. The demurrer was sustained, as the court found that the complaint contained two charges, one, for the unlawful possession of opium, and the other, for the unlawful sale of opium, and, consequence of that ruling, it ordered that the fiscal should separated one charge from the other and file a complaint for each violation; this,

20

21 the fiscal did, and this cause concerns only the unlawful possession of opium. It is registered as No. 375, in the Court of First Instance of Cebu, and as No. 5887 on the general docket of this court. The facts of the case are contained in the following finding of the trial court: The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present month (stated as August 19, 1909), several persons, among them Messrs. Jacks and Milliron, chief of the department of the port of Cebu and internal-revenue agent of Cebu, respectively, went abroad the steamship Erroll to inspect and search its cargo, and found, first in a cabin near the saloon, one sack (Exhibit A) and afterwards in the hold, another sack (Exhibit B). The sack referred to as Exhibit A contained 49 cans of opium, and the other, Exhibit B, the larger sack, also contained several cans of the same substance. The hold, in which the sack mentioned in Exhibit B was found, was under the defendant's control, who moreover, freely and of his own will and accord admitted that this sack, as well as the other referred to in Exhibit B and found in the cabin, belonged to him. The said defendant also stated, freely and voluntarily, that he had bought these sacks of opium, in Hongkong with the intention of selling them as contraband in Mexico or Vera Cruz, and that, as his hold had already been searched several times for opium, he ordered two other Chinamen to keep the sack. Exhibit A. It is to be taken into account that the two sacks of opium, designated as Exhibits A and B, properly constitute thecorpus delicti. Moreover, another lot of four cans of opium, marked, as Exhibit C, was the subject matter of investigation at the trial, and with respect to which the chief of the department of the port of Cebu testified that they were found in the part of the ship where the firemen habitually sleep, and that they were delivered to the first officer of the ship to be returned to the said firemen after the vessel should have left the Philippines, because the firemen and crew of foreign vessels, pursuant to the instructions he had from the Manila custom-house, were permitted to retain certain amounts of opium, always provided it should not be taken shore. And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as evidence in this cause. With regard to this the internal-revenue agent testified as follows:itc-alf FISCAL. What is it? WITNESS. It is a can opium which was bought from the defendant by a secret-service agent and taken to the office of the governor to prove that the accused had opium in his possession to sell. On motion by the defense, the court ruled that this answer might be stricken out "because it refers to a sale." But, with respect to this answer, the chief of the department of customs had already given this testimony, to wit: FISCAL. Who asked you to search the vessel? WITNESS. The internal-revenue agent came to my office and said that a party brought him a sample of opium and that the same party knew that there was more opium on board the steamer, and the agent asked that the vessel be searched. The defense moved that this testimony be rejected, on the ground of its being hearsay evidence, and the court only ordered that the part thereof "that there was more opium, on board the vessel" be stricken out. The defense, to abbreviate proceedings, admitted that the receptacles mentioned as Exhibits A, B, and C, contained opium and were found on board the steamship Erroll, a vessel of English nationality, and that it was true that the defendant stated that these sacks of opium were his and that he had them in his possession. 21

22 According to the testimony of the internal-revenue agent, the defendant stated to him, in the presence of the provincial fiscal, of a Chinese interpreter (who afterwards was not needed, because the defendant spoke English), the warden of the jail, and four guards, that the opium seized in the vessel had been bought by him in Hongkong, at three pesos for each round can and five pesos for each one of the others, for the purpose of selling it, as contraband, in Mexico and Puerto de Vera Cruz; that on the 15th the vessel arrived at Cebu, and on the same day he sold opium; that he had tried to sell opium for P16 a can; that he had a contract to sell an amount of the value of about P500; that the opium found in the room of the other two Chinamen prosecuted in another cause, was his, and that he had left it in their stateroom to avoid its being found in his room, which had already been searched many times; and that, according to the defendant, the contents of the large sack was 80 cans of opium, and of the small one, 49, and the total number, 129. It was established that the steamship Erroll was of English nationality, that it came from Hongkong, and that it was bound for Mexico, via the call ports of Manila and Cebu. The defense moved for a dismissal of the case, on the grounds that the court had no jurisdiction to try the same and the facts concerned therein did not constitute a crime. The fiscal, at the conclusion of his argument, asked that the maximum penalty of the law be imposed upon the defendant, in view of the considerable amount of opium seized. The court ruled that it did not lack jurisdiction, inasmuch as the crime had been committed within its district, on the wharf of Cebu. The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000, with additional subsidiary imprisonment in case of insolvency, though not to exceed one third of the principal penalty, and to the payment of the costs. It further ordered the confiscation, in favor of the Insular Government, of the exhibits presented in the case, and that, in the event of an appeal being taken or a bond given, or when the sentenced should have been served, the defendant be not released from custody, but turned over to the customs authorities for the purpose of the fulfillment of the existing laws on immigration. From this judgment, the defendant appealed to this court.lawphi1.net The appeal having been heard, together with the allegations made therein by the parties, it is found: That, although the mere possession of a thing of prohibited use in these Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a crime triable by the courts of this country, on account of such vessel being considered as an extension of its own nationality, the same rule does not apply when the article, whose use is prohibited within the Philippine Islands, in the present case a can of opium, is landed from the vessel upon Philippine soil, thus committing an open violation of the laws of the land, with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, only the court established in that said place itself had competent jurisdiction, in the absence of an agreement under an international treaty. It is also found: That, even admitting that the quantity of the drug seized, the subject matter of the present case, was considerable, it does not appear that, on such account, the two penalties fixed by the law on the subject, should be imposed in the maximum degree. Therefore, reducing the imprisonment and the fine imposed to six months and P1,000, respectively, we affirm in all other respects the judgment appealed from, with the costs of this instance against the appellant. So ordered. Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.

22

23

Republic SUPREME Manila EN BANC G.R. No. L-31695

of

the

Philippines COURT

November 26, 1929

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. SIA TEB BAN (alias JUAN TONINO, alias JUAN ANTONIO, alias PEDRO ANTONIO), defendant-appellant. Teofilo Mina Attorney-General Jaranilla for appellee. for appellant.

ROMUALDEZ, J.: 23

24 Found guilty of qualified theft and habitual delinquency, the defendant was sentenced by the municipal court of Manila and on appeal, by the Court of First Instance of this City, to two years, four months, and one daypresidio correccional, with costs, and to the additional penalty of twenty-one years' imprisonment. He now contends that he is not guilty of the crime with which he is charged. But it has been proved that he took the watch described in the information without the owner's consent, having been overtaken a few moments later by a friend of the offended party, who found the stolen watch on the appellant. It is alleged that animus lucrandi has not been proved. We find it sufficiently established, as the acts of the accused (one's intention may be gathered from one's deeds) unequivocally show. 1awphil.net It is a fundamental doctrine of law that the act penalized by the law is presumed to be voluntary unless contrary is shown (art. 1, Penal Code). And from the appellant's felonious acts, freely and deliberately executed, the moral and legal presumption of a criminal and injurious intent arises conclusively and indisputably, in the absence of evidence to the contrary (sec. 334, No. 2, Act No. 190). In view of the fact that we find no merit in this appeal and that the law provides for the imposition of accessory penalties, the appealed judgment is modified, the appellant being sentenced to the accessory penalties provided in article 58 of the Penal Code, the said judgment being affirmed in all other respects, with costs against the appellant. So ordered. Avancea, C.J., Johnson, Street, Malcolm, Ostrand and Johns, JJ., concur.

Republic SUPREME Manila EN BANC G.R. No. L-13005 October 10, 1917

of

the

Philippines COURT

THE vs. AH SING, defendant-appellant.

UNITED

STATES, plaintiff-appellee,

Antonio Sanz Acting Attorney-General Paredes for appellee.

for

appellant.

24

25

MALCOLM, J.: This is an appeal from a judgment of the Court of First Instance of Cebu finding the defendant guilty of a violation of section 4 of Act No. 2381 (the Opium Law), and sentencing him to two years imprisonment, to pay a fine of P300 or to suffer subsidiary imprisonment in case of insolvency, and to pay the costs. The following facts are fully proven: The defendant is a subject of China employed as a fireman on the steamship Shun Chang. The Shun Chang is a foreign steamer which arrived at the port of Cebu on April 25, 1917, after a voyage direct from the port of Saigon. The defendant bought eight cans of opium in Saigon, brought them on board the steamship Shun Chang, and had them in his possession during the trip from Saigon to Cebu. When the steamer anchored in the port of Cebu on April 25, 1917, the authorities on making a search found the eight cans of opium above mentioned hidden in the ashes below the boiler of the steamer's engine. The defendant confessed that he was the owner of this opium, and that he had purchased it in Saigon. He did not confess, however, as to his purpose in buying the opium. He did not say that it was his intention to import the prohibited drug into the Philippine Islands. No other evidence direct or indirect, to show that the intention of the accused was to import illegally this opium into the Philippine Islands, was introduced. Has the crime of illegal importation of opium into the Philippine Islands been proven? Two decisions of this Court are cited in the judgment of the trial court, but with the intimation that there exists inconsistently between the doctrines laid down in the two cases. However, neither decision is directly a precedent on the facts before us. In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion handed down by the Chief Justice, it is found That, although the mere possession of a thing of prohibited use in these Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a crime triable by the courts of this country, on account of such vessel being considered as an extension of its own nationality, the same rule does no apply when the article, whose use is prohibited within the Philippine Islands, in the present case a can of opium, is landed from the vessel upon Philippine soil, thus committing an open violation of the laws of the land, with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, only the court established in the said place itself has competent jurisdiction, in the absence of an agreement under an international treaty.1awphil.net A marked difference between the facts in the Look Chaw case and the facts in the present instance is readily observable. In the Look Chaw case, the charge case the illegal possession and sale of opium in the present case the charge as illegal importation of opium; in the Look Chaw case the foreign vessel was in transit in the present case the foreign vessel was not in transit; in the Look Chaw case the opium was landed from the vessel upon Philippine soil in the present case of United States vs. Jose ([1916], 34 Phil., 840), the main point, and the one on which resolution turned, was that in a prosecution based on the illegal importation of opium or other prohibited drug, the Government must prove, or offer evidence sufficient to raise a presumption, that the vessel from which the drug is discharged came into Philippine waters from a foreign country with the drug on board. In the Jose case, the defendants were acquitted because it was not proved that the opium was imported from a foreign country; in the present case there is no question but what the opium came from Saigon to Cebu. However, in the opinion in the Jose case, we find the following which may be obiter dicta, but which at least is interesting as showing the view of the writer of the opinion: 25

26 The importation was complete, to say the least, when the ship carrying it anchored in Subic Bay. It was not necessary that the opium discharged or that it be taken from the ship. It was sufficient that the opium was brought into the waters of the Philippine Islands on a boat destined for a Philippine port and which subsequently anchored in a port of the Philippine Islands with intent to discharge its cargo. Resolving whatever doubt was exist as to the authority of the views just quoted, we return to an examination of the applicable provisions of the law. It is to be noted that section 4 of Act No. 2381 begins, "Any person who shall unlawfully import or bring any prohibited drug into the Philippine Islands." "Import" and "bring" are synonymous terms. The Federal Courts of the United States have held that the mere act of going into a port, without breaking bulk, is prima facie evidence of importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the importation is not the making entry of goods at the custom house, but merely the bringing them into port; and the importation is complete before entry of the Custom House. (U. S. vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the Opium Law, we expressly hold that any person unlawfully imports or brings any prohibited drug into the Philippine Islands, when the prohibited drug is found under this person's control on a vessel which has come direct from a foreign country and is within the jurisdictional limits of the Philippine Islands. In such case, a person is guilty of illegal importation of the drug unless contrary circumstances exist or the defense proves otherwise. Applied to the facts herein, it would be absurb to think that the accused was merely carrying opium back and forth between Saigon and Cebu for the mere pleasure of so doing. It would likewise be impossible to conceive that the accused needed so large an amount of opium for his personal use. No better explanation being possible, the logical deduction is that the defendant intended this opium to be brought into the Philippine Islands. We accordingly find that there was illegal importation of opium from a foreign country into the Philippine Islands. To anticipate any possible misunderstanding, let it be said that these statements do not relate to foreign vessels in transit, a situation not present. The defendant and appellant, having been proved guilty beyond a reasonable doubt as charged and the sentence of the trial court being within the limits provided by law, it results that the judgment must be affirmed with the costs of this instance against the appellant. So ordered. Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur.

Republic SUPREME Manila EN BANC G.R. No. L-47722 26 July 27, 1943

of

the

Philippines COURT

27 THE PEOPLE OF THE vs. ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants. Antonio Z. Oanis in Maximo L. Valenzuela for Acting Solicitor-General Ibaez and Assistant Attorney Torres for appellee. MORAN, J.: Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, respectively, were, after due trial, found guilty by the lower court of homicide through reckless imprudence and were sentenced each to an indeterminate penalty of from one year and six months to two years and two months of prison correccional and to indemnify jointly and severally the heirs of the deceased in the amount of P1,000. Defendants appealed separately from this judgment. In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following tenor: "Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain Monsod accordingly called for his first sergeant and asked that he be given four men. Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at the office of the Provincial Inspector where they were shown a copy of the above-quoted telegram and a newspaper clipping containing a picture of Balagtas. They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram. The same instruction was given to the chief of police Oanis who was likewise called by the Provincial Inspector. When the chief of police was asked whether he knew one Irene, a bailarina, he answered that he knew one of loose morals of the same name. Upon request of the Provincial Inspector, the chief of police tried to locate some of his men to guide the constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered to go with the party. The Provincial Inspector divided the party into two groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street leading to the house where Irene was supposedly living. When this group arrived at Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and asked her where Irene's room was. Brigida indicated the place and upon further inquiry also said that Irene was sleeping with her paramour. Brigida trembling, immediately returned to her own room which was very near that occupied by Irene and her paramour. Defendants Oanis and Galanta then went to the room of Irene, and an seeing a man sleeping with his back towards the door where they were, simultaneously or successively fired at him with their .32 and .45 caliber revolvers. Awakened by the gunshots, Irene saw her paramour already wounded, and looking at the door where the shots came, she saw the defendants still firing at him. Shocked by the entire scene. Irene fainted; it turned out later that the person shot and killed was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the killing, repaired to the scene and when he asked as to who killed the deceased. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were found on Tecson's body which caused his death. These are the facts as found by the trial court and fully supported by the evidence, particularly by the testimony of Irene Requinea. Appellants gave, however, a different version of the tragedy. According to Appellant Galanta, when he and chief of police Oanis arrived at the house, the latter asked Brigida where Irene's room was. Brigida indicated the place, and upon further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went to the room thus indicated and upon opening the curtain covering the door, he said: "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up and as the former was about to sit up in bed. 27 his PHILIPPINES, plaintiff-appellee,

own appellant

behalf. Galanta.

28 Oanis fired at him. Wounded, Tecson leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta then fired at Tecson. On the other hand, Oanis testified that after he had opened the curtain covering the door and after having said, "if you are Balagtas stand up." Galanta at once fired at Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his bullets: that it was only thereafter that he, Oanis, entered the door and upon seeing the supposed Balagtas, who was then apparently watching and picking up something from the floor, he fired at him. The trial court refused to believe the appellants. Their testimonies are certainly incredible not only because they are vitiated by a natural urge to exculpate themselves of the crime, but also because they are materially contradictory. Oasis averred that be fired at Tecson when the latter was apparently watching somebody in an attitudes of picking up something from the floor; on the other hand, Galanta testified that Oasis shot Tecson while the latter was about to sit up in bed immediately after he was awakened by a noise. Galanta testified that he fired at Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent from these contradictions that when each of the appellants tries to exculpate himself of the crime charged, he is at once belied by the other; but their mutual incriminating averments dovetail with and corroborate substantially, the testimony of Irene Requinea. It should be recalled that, according to Requinea, Tecson was still sleeping in bed when he was shot to death by appellants. And this, to a certain extent, is confirmed by both appellants themselves in their mutual recriminations. According, to Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just after he was awakened by a noise. And Oanis assured that when Galanta shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that the trial court had the opportunity to observe her demeanor on the stand, we believe and so hold that no error was committed in accepting her testimony and in rejecting the exculpatory pretensions of the two appellants. Furthermore, a careful examination of Irene's testimony will show not only that her version of the tragedy is not concocted but that it contains all indicia of veracity. In her cross-examination, even misleading questions had been put which were unsuccessful, the witness having stuck to the truth in every detail of the occurrence. Under these circumstances, we do not feel ourselves justified in disturbing the findings of fact made by the trial court. The true fact, therefore, of the case is that, while Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively, believing him to be Anselmo Balagtas but without having made previously any reasonable inquiry as to his identity. And the question is whether or not they may, upon such fact, be held responsible for the death thus caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact in the honest performance of their official duties, both of them believing that Tecson was Balagtas, they incur no criminal liability. Sustaining this theory in part, the lower court held and so declared them guilty of the crime of homicide through reckless imprudence. We are of the opinion, however, that, under the circumstances of the case, the crime committed by appellants is murder through specially mitigated by circumstances to be mentioned below. In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness. In the Ah Chong case, defendant therein after having gone to bed was awakened by someone trying to open the door. He called out twice, "who is there," but received no answer. Fearing that the intruder was a robber, he leaped from his bed and called out again., "If you enter the room I will kill you." But at that precise moment, he was struck by a chair which had been placed against the door and believing that he was then being attacked, he seized a kitchen knife and struck and fatally wounded the intruder who turned out to be his room-mate. A common illustration of innocent mistake of fact is the case of a man who was marked as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and with leveled, pistol demanded his money or life. He was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled at his head was loaded and that his life and property were in imminent danger at the hands of the aggressor. In these instances, there is an innocent mistake of fact 28

29 committed without any fault or carelessness because the accused, having no time or opportunity to make a further inquiry, and being pressed by circumstances to act immediately, had no alternative but to take the facts as they then appeared to him, and such facts justified his act of killing. In the instant case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever which would press them to immediate action. The person in the room being then asleep, appellants had ample time and opportunity to ascertain his identity without hazard to themselves, and could even effect a bloodless arrest if any reasonable effort to that end had been made, as the victim was unarmed, according to Irene Requinea. This, indeed, is the only legitimate course of action for appellants to follow even if the victim was really Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and to get him dead or alive only if resistance or aggression is offered by him. Although an officer in making a lawful arrest is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary force or in treating him with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine is restated in the new Rules of Court thus: "No unnecessary or unreasonable force shall be used in making an arrest, and the person arrested shall not be subject to any greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And a peace officer cannot claim exemption from criminal liability if he uses unnecessary force or violence in making an arrest (5 C.J., p. 753; U.S.vs. Mendoza, 2 Phil., 109). It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a fugitive from justice and a menace to the peace of the community, but these facts alone constitute no justification for killing him when in effecting his arrest, he offers no resistance or in fact no resistance can be offered, as when he is asleep. This, in effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso (3 Phil., 234, 242). It is, however, suggested that a notorious criminal "must be taken by storm" without regard to his right to life which he has by such notoriety already forfeited. We may approve of this standard of official conduct where the criminal offers resistance or does something which places his captors in danger of imminent attack. Otherwise we cannot see how, as in the present case, the mere fact of notoriety can make the life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly supplies a basis for redoubled official alertness and vigilance; it never can justify precipitate action at the cost of human life. Where, as here, the precipitate action of the appellants has cost an innocent life and there exist no circumstances whatsoever to warrant action of such character in the mind of a reasonably prudent man, condemnation not condonation should be the rule; otherwise we should offer a premium to crime in the shelter of official actuation. The crime committed by appellants is not merely criminal negligence, the killing being intentional and not accidental. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada, "para que se celifique un hecho de imprudencia es preciso que no haya mediado en el malicia ni intencion alguna de daar; existiendo esa intencion, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la intencion del agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 Phil., 605) to support a plea of mitigated liability. As the deceased was killed while asleep, the crime committed is murder with the qualifying circumstance ofalevosia. There is, however, a mitigating circumstance of weight consisting in the incomplete justifying circumstance defined in article 11, No. 5, of the Revised Penal Code. According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise of a right or office. There are two requisites in order that the circumstance may be taken as a justifying one: (a) that the offender acted in the performance of a duty or in the lawful 29

30 exercise of a right; and (b) that the injury or offense committed be the necessary consequence of the due performance of such duty or the lawful exercise of such right or office. In the instance case, only the first requisite is present appellants have acted in the performance of a duty. The second requisite is wanting for the crime by them committed is not the necessary consequence of a due performance of their duty. Their duty was to arrest Balagtas or to get him dead or alive if resistance is offered by him and they are overpowered. But through impatience or over-anxiety or in their desire to take no chances, they have exceeded in the fulfillment of such duty by killing the person whom they believed to be Balagtas without any resistance from him and without making any previous inquiry as to his identity. According to article 69 of the Revised Penal Code, the penalty lower by one or two degrees than that prescribed by law shall, in such case, be imposed. For all the foregoing, the judgment is modified and appellants are hereby declared guilty of murder with the mitigating circumstance above mentioned, and accordingly sentenced to an indeterminate penalty of from five (5) years of prision correctional to fifteen (15) years of reclusion temporal, with the accessories of the law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an indemnity of P2,000, with costs. Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.

Separate Opinions PARAS, J., dissenting: Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee form Manila to the provinces. Receiving information to the effect that he was staying with one Irene in Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila ordered the Provincial Inspector in Cabanatuan by telegram dispatched on December 25, 1938, to get Balagtas "dead or alive". Among those assigned to the task of carrying out the said order, were Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the telegram received by the Provincial Inspector and a newspaper picture of Balagtas were shown. Oanis, Galanta and a Constabulary private, after being told by the Provincial Inspector to gather information about Balagtas, "to arrest him and, if overpowered, to follow the instructions contained in the telegram," proceeded to the place where the house of Irene was located. Upon arriving thereat, Oanis approached Brigida Mallari, who was then gathering banana stalks in the yard, and inquired for the room of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell where Irene's paramour, Balagtas, was, whereupon Mallari answered that he was sleeping with Irene. Upon reaching the room indicated, Oanis and Galanta, after the former had shouted "Stand up, if you are Balagtas," started shooting the man who was found by them lying down beside a woman. The man was thereby killed, but Balagtas was still alive, for it turned out that the person shot by Oanis and Galanta was one Serapio Tecson. Consequently, Oanis and Galanta were charged with having committed murder. The Court of First Instance of Nueva Ecija, however, convicted them only of homicide through reckless imprudence and sentenced them each to suffer the indeterminate penalty of from 1 year and 6 months to 2 years and 2 months of prision correctional, to jointly and severally indemnify the heirs of Serapio Tecson in the amount of P1,000, and to pay the costs. Oanis and Galanta have appealed. In accomplishing the acts with which the appellants were charged, they undoubtedly followed the order issued by the Constabulary authorities in Manila requiring the Provincial Inspector in Cabanatuan to get Balagtas dead or alive, in the honest belief that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive criminal, with revolvers in his possession and a record that made him extremely dangerous and a public terror, the Constabulary authorities were justified in ordering his arrest, whether dead or alive. In view of said order and the danger faced by the appellants in carrying it out, they cannot be said to have acted feloniously in shooting the person honestly believed by them to be the 30

31 wanted man. Conscious of the fact that Balagtas would rather kill than be captured, the appellants did not want to take chances and should not be penalized for such prudence. On the contrary, they should be commended for their bravery and courage bordering on recklessness because, without knowing or ascertaining whether the wanted man was in fact asleep in his room, they proceeded thereto without hesitation and thereby exposed their lives to danger. The Solicitor-General, however, contends that the appellants were authorized to use their revolvers only after being overpowered by Balagtas. In the first place, the alleged instruction by the Provincial Inspector to that effect, was in violation of the express order given by the Constabulary authorities in Manila and which was shown to the appellants. In the second place, it would indeed be suicidal for the appellants or, for that matter, any agent of the authority to have waited until they have been overpowered before trying to put our such a character as Balagtas. In the third place, it is immaterial whether or not the instruction given by the Provincial Inspector was legitimate and proper, because the facts exist that the appellants acted in conformity with the express order of superior Constabulary authorities, the legality or propriety of which is not herein questioned. The theory of the prosecution has acquired some plausibility, though quite psychological or sentimental, in view only of the fact that it was not Balagtas who was actually killed, but an "innocent man . . . while he was deeply asleep." Anybody's heart will be profoundly grieved by the trade, but in time will be consoled by the realization that the life of Serapio Tecson was not vainly sacrificed, for the incident will always serve as a loud warning to any one desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly constituted authorities will, upon proper order, enforce the summary forfeiture of his life. In my opinion, therefore, the appellants are not criminally liable if the person killed by them was in fact Anselmo Balagtas for the reason that they did so in the fulfillment of their duty and in obedience to an order issued by a superior for some lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be held criminally liable even if the person killed by them was not Anselmo Balagtas, but Serapio Tecson, because they did so under an honest mistake of fact not due to negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488). It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred by any person committing a felony although the wrongful act done be different from that which he intended; but said article is clearly inapplicable since the killing of the person who was believed to be Balagtas was, as already stated, not wrongful or felonious. The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point, inasmuch as the defendant therein, who intended to injure Hilario Lauigan with whom he had a quarrel, but killed another by mistake, would not be exempted from criminal liability if he actually injured or killed Hilario Lauigan, there being a malicious design on his part. The other case involved by the prosecution is U.S. vs. Donoso (3 Phil., 234). This is also not in point, as it appears that the defendants therein killed one Pedro Almasan after he had already surrendered and allowed himself to be bound and that the said defendants did not have lawful instructions from superior authorities to capture Almasan dead or alive. The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and Alberto Galanta, acquitted, with costs de oficio.

HONTIVEROS, J., dissenting: According to the opinion of the majority, it is proper to follow the rule that a notorious criminal "must be taken by storm without regard to his life which he has, by his conduct, already forfeited," whenever said criminal offers resistance or does something which places his captors in danger of imminent attack. Precisely, the situation which confronted the 31

32 accused-appellants Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24, 1938, was very similar to this. It must be remembered that both officers received instructions to get Balagtas "dead or alive" and according to the attitude of not only the said appellants but also of Capt. Monsod, constabulary provincial inspector of Nueva Ecija, it may be assumed that said instructions gave more emphasis to the first part; namely, to take him dead. It appears in the record that after the shooting, and having been informed of the case, Capt. Monsod stated that Oanis and Galanta might be decorated for what they had done. That was when all parties concerned honestly believed that the dead person was Balagtas himself, a dangerous criminal who had escaped from his guards and was supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom the appellants met upon arriving at the house of Irene Requinea, supposed mistress of Balagtas, informed them that said Balagtas was upstairs. Appellants found there asleep a man closely resembling the wanted criminal. Oanis said: If you are Balagtas stand up," But the supposed criminal showed his intention to attack the appellants, a conduct easily explained by the fact that he should have felt offended by the intrusion of persons in the room where he was peacefully lying down with his mistress. In such predicament, it was nothing but human on the part of the appellants to employ force and to make use of their weapons in order to repel the imminent attack by a person who, according to their belief, was Balagtas It was unfortunate, however that an innocent man was actually killed. But taking into consideration the facts of the case, it is, according to my humble opinion, proper to apply herein the doctrine laid down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant case we have, as in the case supra, an innocent mistake of fact committed without any fault or carelessness on the part of the accused, who having no time to make a further inquiry, had no alternative but to take the facts as they appeared to them and act immediately. The decision of the majority, in recognition of the special circumstances of this case which favored the accusedappellants, arrives at the conclusion that an incomplete justifying circumstance may be invoked, and therefore, according to Article 69 of the Revised Penal Code, the imposable penalty should be one which is lower by one or two degrees than that prescribed by law. This incomplete justifying circumstance is that defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a person who acts in the fulfillment of a duty or in the lawful exercise of a right or office." I believe that the application of this circumstance is not proper. Article 69 of the Revised Penal Code provides as follows: Art. 69. Penalty to be imposed when the crime committed is not wholly excusable. A penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in articles 11 and 12, provided that the majority of such conditions be present. The courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking. This provision has been copied almost verbatim from Article 84 of the old Penal Code of the Philippines, and which was also taken from Article 87 of the Spanish Penal Code of 1870. Judge Guillermo Guevara, one of the members of the Committee created by Administrative Order No. 94 of the Department of Justice for the drafting of the Revised Penal Code, in commenting on Article 69, said that the justifying circumstances and circumstances exempting from liability which are the subject matter of this article are the following: self-defense, defense of relatives, defense of strangers, state of necessity and injury caused by mere accident. Accordingly, justifying circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or the lawful exercise of a right, calling or office, cannot be placed within its scope. The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the Spanish Penal Code of 1870 which is the source of Article 69 of our Code says:

32

33 Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del que obra violentado por una fuerza inrresistible o impulsado por miedo insuperable de un mal igual o mayor, o en cumplimiento de un deber, o en el ejercito legitimo de un derecho, oficio o cargo, o en virtud de obediencia debida, ni del que incurre en alguna omision hallandose impedido por causa legitima o insuperable, puede tener aplicacion al articulo que comentamos. Y la razon es obvia. En ninguna de estas execiones hay pluralidad de requisitos. La irrespondabilidad depende de una sola condicion. Hay o no perturbacion de la razon; el autor del hecho es o no menor de nueve aos; existe o no violencia material o moral irresistible, etc., etc.; tal es lo que respectivamente hay que examinar y resolver para declarar la culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el texto que va al frente de estas lineas rquiere, para que se imponga al autor del hecho la penalidad excepcional que establece; esto es, que falten algunos requisitos de los que la ley exige para eximir de responsabilidad, y que concurran el mayor numero de ellos, toda vez que, en los casos referidos, la ley no exige multiples condiciones. It must be taken into account the fact according to Article 69 a penalty lower by one or two degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by reason of the lack of some of the conditions required by the law to justify the same or exempt from criminal liability. The word "conditions" should not be confused with the word "requisites". In dealing with justifying circumstance No. 5 Judge Guevara states: "There are two requisites in order that this circumstance may be taken into account: (a) That the offender acted in the performance of his duty or in the lawful exercise of a right; and (b) That the injury or offense committed be the necessary consequence of the performance of a duty or the lawful exercise of a right or office." It is evident that these two requisites concur in the present case if we consider the intimate connection between the order given to the appellant by Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas who was with a bailarina named Irene, the conduct of said appellants in questioning Brigida Mallari and giving a warning to the supposed criminal when both found him with Irene, and the statement made by Capt. Monsod after the shooting. If appellant Oanis is entitled to a reversal of the decision of the court below, there are more reasons in favor of the acquittal of appellant Galanta. According to the evidence no bullet from the gun fired by this accused ever hit Serapio Tecson. Galanta was armed in the afternoon of December 24, 1938, with a .45 caliber revolver (Exhibit L). He so testified and was corroborated by the unchallenged testimony of his superior officer Sgt. Valeriano Serafica. According to this witness, since Galanta was made a corporal of the Constabulary he was given, as part of his equipment, revolver Exhibit L with a serial No. 37121. This gun had been constantly used by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said accused when he took it from his trunk in the barracks on the night of December 24, 1938, upon order of Captain Monsod, it was the same revolver which was given to the witness with five .45 caliber bullets and one empty shell. Fourteen unused bullets were also taken from Galanta by Sergeant Serafica, thus completing his regular equipment of twenty bullets which he had on the morning of December 24, 1938, when Sergeant Serafica made the usual inspection of the firearms in the possession of the non-commissioned officers and privates of the constabulary post at Cabanatuan. Galanta stated that he had fired only one shot and missed. This testimony is corroborated by that of a ballistic expert who testified that bullets exhibits F and O, the first being extracted from the head of the deceased, causing wound No. 3 of autopsy report Exhibit C and the second found at the place of the shooting, had not been fired from revolver Exhibit L nor from any other revolver of the constabulary station in Cabanatuan. It was impossible for the accused Galanta to have substituted his revolver because when Exhibit L was taken from him nobody in the barracks doubted that the deceased was none other than Balagtas. Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta should carry along another gun, according to the natural course of things. On the other hand, aside from wound No. 3 as above stated, no other wound may be said to have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion that wound No. 2 must have been caused by a .45 caliber bullet, but inasmuch as the diameter of the wound's entrance was only 8 mm., the caliber should be .32 and not .45, because according to the medico-legal expert who testified in this case, a bullet of a .45 caliber will produce a wound entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the surgeon who performed the autopsy 33

34 appeared to have been caused by bullets of a lesser caliber. In consequence, it can be stated that no bullet fired by Galanta did ever hit or kill Serapio Tecson and therefore there is no reason why he should be declared criminally responsible for said death.

Republic SUPREME Manila EN BANC G.R. No. L-1477 January 18, 1950

of

the

Philippines COURT

THE PEOPLE vs. JULIO GUILLEN, defendant-appellant.

OF

THE

PHILIPPINES, plaintiff-appellee,

Mariano A. Albert for Office of the Solicitor General Felix Bautista Angelo and Solicitor Francisco A. Carreon for appellee. PER CURIAM, J.:

appellant.

This case is before us for review of, and by virtue of appeal from, the judgment rendered by the Court of First Instance of Manila in case No. 2746, whereby Julio Guillen y Corpus, or Julio C. Guillen, is found guilty beyond reasonable doubt of the crime of murder and multiple frustrated murder, as charged in the information, and is sentenced to the penalty of death, to indemnify the of the deceased Simeon Valera (or Barrela) in the sum of P2,000 and to pay the costs. Upon arraignment the accused entered a plea of not guilty to the charges contained in the information. Then the case was tried in one of the branches of the Court of First Instance of Manila presided over by the honorable Buenaventura Ocampo who, after the submission of the evidence of the prosecution and the defense, rendered judgment as above stated.

34

35 In this connection it should be stated that, at the beginning of the trial and before arraignment, counsel de oficiofor the accused moved that the mental condition of Guillen be examined. The court, notwithstanding that it had found out from the answers of the accused to questions propounded to him in order to test the soundness of his mind, that he was not suffering from any mental derangement, ordered that Julio Guillen be confined for Hospital, there to be examined by medical experts who should report their findings accordingly. This was done, and, according to the report of the board of medical experts, presided over by Dr. Fernandez of the National Psychopathic Hospital, Julio Guillen was not insane. Said report (Exhibit L), under the heading "Formulation and Diagnosis," at pages 13 and 14, reads: FORMULATION AND DIAGNOSIS Julio C. Guillen was placed under constant observation since admission. There was not a single moment during his whole 24 hours daily, that he was not under observation. The motive behind the commission of the crime is stated above. The veracity of this motivation was determined in the Narcosynthesis. That the narco-synthesis was successful was checked up the day after the test. The narcosynthesis proved not only reveal any conflict or complex that may explain a delusional or hallucinatory motive behind the act. Our observation and examination failed to elicit any sign or symptom of insanity in Mr. Julio C. Guillen. He was found to be intelligent, always able to differentiate right from wrong, fully aware of the nature of the crime he committed and is equally decided to suffer for it in any manner or form. His version of the circumstances of the crime, his conduct and conversation relative thereto, the motives, temptations and provocations that preceded the act, were all those of an individual with a sound mind. On the other hand he is an man of strong will and conviction and once arriving at a decision he executes, irrespective of consequences and as in this case, the commission of the act at Plaza Miranda. What is of some interest in the personality of Julio C. Guillen is his commission of some overt acts. This is seen not only in the present instance, but sometime when an employee in la Clementina Cigar Factory he engaged in a boxing bout Mr. Manzano, a Span-wanted to abuse the women cigar makers, and felt it his duty to defend them. One time he ran after a policeman with a knife in hand after being provoked to a fight several times. He even challenged Congressman Nueno to a fight sometime before when Mr. Nueno was running for a seat in the Municipal Board of the City of Manila, after hearing him deliver one of his apparently outspoken speeches. All these mean a defect in his personality characterized by a weakness of censorship especially in relation to rationalization about the consequences of his acts. In view of the above findings it is our considered opinion that Julio C. Guillen is not insane but is an individual with a personality defect which in Psychiatry is termed, Constitutional Psychopathic Inferiority. Final Diagnosis Not insane: Constitutional Psychopathic Inferiority, without psychosis. In view of the above-quoted findings of the medical board, and notwithstanding the contrary opinion of one Dr. Alvarez, who was asked by the defense to give his opinion on the matter, the court ruled that Guillen, not being insane, could be tired, as he was tired, for the offenses he committed on the date in question. 35

36 THE FACTS Upon careful perusal of the evidence and the briefs submitted by counsel for the accused, the Solicitor General and their respective memoranda, we find that there is no disagreement between the prosecution and the defense, as to the essential facts which caused the filing of the present criminal case against this accused. Those facts may be stated as follows: On the dates mentioned in this decision, Julio Guillen y Corpus, although not affirmed with any particular political group, has voted for the defeated candidate in the presidential elections held in 1946. Manuel A. Roxas, the successful candidate, assumed the office of President of the Commonwealth and subsequently President of the President of the Philippine Republic. According to Guillen, he became disappointed in President Roxas for his alleged failure to redeem the pledges and fulfill the promises made by him during the presidential election campaign; and his disappointment was aggravated when, according to him, President Roxas, instead of looking after the interest of his country, sponsored and campaigned for the approval of the so-called "parity" measure. Hence he determined to assassinate the President. After he had pondered for some time over the ways and means of assassinating President Roxas, the opportunity presented itself on the night of March 10, 1947, when at a popular meeting held by the Liberal Party at Plaza de Miranda, Quiapo, Manila attended by a big crowd, President Roxas, accompanied by his wife and daughter and surrounded by a number of ladies and gentlemen prominent in government and politics, stood on a platform erected for that purpose and delivered his speech expounding and trying to convince his thousand of listeners of the advantages to be gained by the Philippines, should the constitutional amendment granting American citizens the same rights granted to Filipino nationals be adopted. Guillen had first intended to use a revolver for the accomplishment of his purpose, but having lost said firearm, which was duly licensed, he thought of two hand grenades which were given him by an American soldier in the early days of the liberation of Manila in exchange for two bottles of whisky. He had likewise been weighing the chances of killing President Roxas, either by going to Malacaan, or following his intended victim in the latter's trips to provinces, for instance, to Tayabas (now Quezon) where the President was scheduled to speak, but having encountered many difficulties, he decided to carry out his plan at the pro-parity meeting held at Plaza de Miranda on the night of March 10, 1947. On the morning of that he went to the house of Amando Hernandez whom he requested to prepare for him a document (Exhibit B), in accordance with their pervious understanding in the preceding afternoon, when they met at the premises of the Manila Jockey Club on the occasion of an "anti-parity" meeting held there. On account of its materially in this case, we deem it proper to quote hereunder the contents of said document. An English translation (Exhibit B-2) from its original Tagalog reads: FOR THE SAKE OF A FREE PHILIPPINES I am the only one responsible for what happened. I conceived it, I planned it, and I carried it out all by myself alone. It took me many days and nights pondering over this act, talking to my own conscience, to my God, until I reached my conclusion. It was my duty. I did not expected to live long; I only had on life to spare. And had I expected to lives to spare, I would not have hesitated either ton sacrifice it for the sake of a principle which was the welfare of the people. Thousands have died in Bataan; many more have mourned the loss of their husbands, of their sons, and there are millions now suffering. Their deeds bore no fruits; their hopes were frustrated. 36

37 I was told by my conscience and by my God that there was a man to be blamed for all this: he had deceived the people, he had astounded them with no other purpose than to entice them; he even went to the extent of risking the heritage of our future generations. For these reasons he should not continue any longer. His life would mean nothing as compared with the welfare of eighteen million souls. And why should I not give up my life too if only the good of those eighteen million souls. These are the reasons which impelled me to do what I did and I am willing to bear up the consequences of my act. I t matters not if others will curse me. Time and history will show, I am sure, that I have only displayed a high degree of patriotism in my performance of my said act. Hurrah for a free Philippines. Cheers for the happiness of every Filipino home. May God pity on me. Amen. JULIO C. GUILLEN A copy (Exhibit B-1) of the original in Tagalog (Exhibit B), made at the request of Guillen by his nephew, was handed to him only at about 6 o'clock in the afternoon of March 10, 1947, for which reason said Exhibit B-1 appears unsigned, because he was in a hurry for that meeting at Plaza de Miranda. When he reached Plaza de Miranda, Guillen was carrying two hand grenades concealed in a paper bag which also contained peanuts. He buried one of the hand grenades (Exhibit D), in a plant pot located close to the platform, and when he decided to carry out his evil purpose he stood on the chair on which he had been sitting and, from a distance of about seven meters, he hurled the grenade at the President when the latter had just closed his speech, was being congratulated by Ambassador Romulo and was about to leave the platform. General Castaeda, who was on the platform, saw the smoking, hissing, grenade and without losing his presence of mind, kicked it away from the platform, along the stairway, and towards an open space where the general thought the grenade was likely to do the least harm; and, covering the President with his body, shouted to the crowd that everybody should lie down. The grenade fell to the ground and exploded in the middle of a group of persons who were standing close to the platform. Confusion ensued, and the crowd dispersed in a panic. It was found that the fragments of the grenade had seriously injured Simeon Varela (or Barrela ) who died on the following day as the result of mortal wounds caused by the fragments of the grenade (Exhibits F and F-1) Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang. Guillen was arrested by members of the Police Department about two hours after the occurrence. It appears that one Angel Garcia, who was one spectators at that meeting, saw how a person who was standing next to him hurled an object at the platform and, after the explosion, ran away towards a barber shop located near the platform at Plaza de Miranda. Suspecting that person was the thrower of the object that exploded, Garcia went after him and had almost succeeded in holding him, but Guillen offered stiff resistance, got loose from Garcia and managed to escape. Garcia pursued him, but some detectives, mistaking the former for the real criminal and the author of the explosion, placed him under arrest. In the meantime, while the City Mayor and some agents of the Manila Police Department were investigating the affair, one Manuel Robles volunteered the information that the person with whom Angel Garcia was wrestling was Julio Guillen; 37

38 that he (Manuel Robles) was acquainted with Julio Guillen for the previous ten years and had seen each other in the plaza a few moments previous to the explosion. The police operatives interrogated Garcia and Robles, and Julio Guillen was, within two hours after the occurrence, found in his home at 1724 Juan Luna Street, Manila, brought to the police headquarters and identified by Angel Garcia, as the same person who hurled towards the platform the object which exploded and whom Garcia tried to hold when he was running away. During the investigation conducted by the police he readily admitted his responsibility, although at the same time he tried to justify his action in throwing the bomb at President Roxas. He also indicated to his captors the place where he had hidden his so called last will quoted above and marked Exhibit B, which was then unsigned by him and subsequently signed at the police headquarters. Re-enacting the crime (Exhibit C), he pointed out to the police where he had buried (Exhibit C-1) the other hand grenade (Exhibit D), and, in the presence of witnesses he signed a statement which contained his answers to question propounded to him by Major A. Quintos of the Manila Police, who investigated him soon after his arrest (Exhibit E). From a perusal of his voluntary statement, we are satisfied that it tallies exactly with the declarations and made by him on the witness stand during the trial of this case.

THE ISSUES In the brief submitted by counsel de oficio for this appellant, several errors are assigned allegedly committed by the trial court, namely: first, "in finding the appellant guilty of murder for the death of Simeon Varela"; second, "in declaring the appellant guilty of the complex crime of murder and multiple frustrated murder"; third, "in applying sub-section 1 of article 49 of the Revised Penal Code in determining the penalty to be imposed upon the accused"; and fourth, "in considering the concurrence of the aggravating circumstances of nocturnity and of contempt of public authorities in the commission of crime." The evidence for the prosecution, supported by the brazen statements made by the accused, shows beyond any shadow of doubt that, when Guillen attended that meeting, carrying with him two hand grenades, to put into execution his preconceived plan to assassinate President Roxas, he knew fully well that, by throwing one of those two hand grenades in his possession at President Roxas, and causing it to explode, he could not prevent the persons who were around his main and intended victim from being killed or at least injured, due to the highly explosive nature of the bomb employed by him to carry out his evil purpose. Guillen, testifying in his own behalf, in answer to questions propounded by the trial judge (page 96 of transcript) supports our conclusion. He stated that he performed the act voluntarily; that his purpose was to kill the President, but that it did not make any difference to him if there were some people around the President when he hurled that bomb, because the killing of those who surrounded the President was tantamount to killing the President, in view of the fact that those persons, being loyal to the President being loyal to the President, were identified with the latter. In other word, although it was not his main intention to kill the persons surrounding the President, he felt no conjunction in killing them also in order to attain his main purpose of killing the President. The facts do not support the contention of counsel for appellant that the latter is guilty only of homicide through reckless imprudence in regard to the death of Simeon Varela and of less serious physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang, and that he should be sentenced to the corresponding penalties for 38

39 the different felonies committed, the sum total of which shall not exceed three times the penalty to be imposed for the most serious crime in accordance with article 70 in relation to article 74 of the Revised Penal Code. In throwing hand grenade at the President with the intention of killing him, the appellant acted with malice. He is therefore liable for all the consequences of his wrongful act; for in accordance with article 4 of the Revised Penal Code, criminal liability is incurred by any person committing felony (delito) although the wrongful act done be different from that which he intended. In criminal negligence, the injury caused to another should be unintentional, it being simply the incident of another act performed without malice. (People vs. Sara, 55 Phil., 939.) In the words of Viada, "in order that an act may be qualified as imprudence it is necessary that either malice nor intention to cause injury should intervene; where such intention exists, the act should qualified by the felony it has produced even though it may not have been the intention of the actor to cause an evil of such gravity as that produced.' (Viada's Comments on the Penal Code, vol. 7, 5th ed., p.7.) And, as held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence. (People vs. Nanquil, 43 Phil., 232.) Where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence. (People vs. Gona, 54 Phil., 605) Squarely on the point by counsel is the following decision of the Supreme Court of Spain: Cuestion 62. Se presenta A, a las ocho de la noche, en el estanco de B a comprar tabaco, y habiendose negado este a darselo al fiado, se retira a quel sin mediar entre ambos disputa alguna; pero; trnscurrido un cuarto de hora, hallandose el estanquero despachando a C, se oye la detonacion de un arma de fuego disparada por A desde la calle, quedando muertos en el acto C y el estanquero; supuesta la no intencion en A de matar a C y si solo al estanquero, cabe calificar la muerte de este de homicidio y la de c de imprudencia temeraria? La Sala de lo Criminal de la Auudiencia de Granada lo estimo asi, y condeno al procesado a catorse anos de reclusion por el homivcidio y a un ao de prision correctional por la imprudencia. Aparte de que la muerte del estanquero debio calificarse de assesinato y no de homicidio, por haberse ejecutado con aleviosa. es evidente que la muerte de C, suponiendo que no se propusiera ejecutaria el procesado, no pudo calificarse de imprudencia teme raria, sino que tambien debio declararsele responsable de la misma, a tenor de lo puesto en este apartado ultimo del articulo; y que siendo ambas muertes producidas por un solo hecho, o sea por un solo disparo, debio imponerse al reo la pena del delito de asesinato en el grado maximo, a tenor de lo dispuesto en el art. 90 del Codigo, o sea la pena de muerte. Se ve, pues, claramente que en el antedicha sentencia, aparte de otros articulos del Codigo, se infringio por la Sala la disposicion de este apartado ultimo del articulo muy principalmente, y asi lo declaro el Tribunal Supremo en S. de 18 junio de 1872. (Gaceta de 1,0 de agosto.) (I Viada, 5th Ed., p. 42.) Article 48 of the Revised Penal Code provides as follows: Art. 48. Penalty for Complex Crimes. When a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. We think it is the above-quoted article and not paragraph 1 of article 49 that is applicable. The case before us is clearly governed by the first clause of article 48 because by a single act, that a throwing highly explosive hand grenade at President Roxas, the accused committed two grave felonies, namely: (1) murder, of which Simeon Varela was the victim; and (2) multiple attempted murder, of which President Roxas, Alfredo Eva, Jose Fabio, Pedro Carrillo and Emilio Maglalang were the injured parties. The killing of Simeon Varela was attended by the qualifying circumstance of treachery. In the case of People vs. Mabugat, supra, this court held that the qualifying circumstance of treachery may be properly considered, even when the victim of the attack was not the one whom the defendant intended to kill, if it appears from the evidence that neither of the two persons could in any manner put up defense against the attack, or become aware of it. In the same case it was 39

40 held that the qualifying circumstance of premeditation may not be properly taken into the account when the person whom the defendant proposed to kill was different from the one who became his victim. There can be no question that the accused attempted to kill President Roxas by throwing a hand grenade at him with the intention to kill him, thereby commencing the commission of a felony by over acts, but he did not succeed in assassinating him "by reason of some cause or accident other than his own spontaneous desistance." For the same reason we qualify the injuries caused on the four other persons already named as merely attempted and not frustrated murder. In this connection, it should be stated that , although there is abundant proof that , in violation of the provisions of article 148 of the Revised Penal Code, the accused Guillen has committed among others the offense of assault upon a person in authority, for in fact his efforts were directed towards the execution of his main purpose of eliminating President Roxas for his failure to redeem his electoral campaign promises, by throwing at him in his official capacity as the Chief Executive of the nation the hand grenade in question, yet, in view of the appropriate allegation charging Guillen with the commission of said offense, we shall refrain making a finding to that effect. The complex crimes of murder and multiple attempted murder committed by the accused with the single act of throwing a hand grenade at the President, was attended by the various aggravating circumstances alleged in the information, without any mitigating circumstance. But we do not deem it necessary to consider said aggravating circumstances because in any event article 48 of the Revised Penal Code above-quoted requires that the penalty for the most serious of said crimes be applied in its maximum period. The penalty for murder is reclusion temporalin its maximum period to death. (Art. 248.) It is our painful duty to apply the law and mete out to the accused the extreme penalty provided by it upon the facts and circumstances hereinabove narrated. The sentence of the trial court being correct, we have no alternative but to affirm it, and we hereby do so by a unanimous vote. The death sentence shall be executed in accordance with article 81 of the Revised Penal Code, under authority of the Director of Prisons, on such working day as the trial court may fix within 30 days from the date the record shall have been remanded. It is so ordered.

.Republic SUPREME Manila 40

of

the

Philippines COURT

41 EN BANC DECISION March 31, 1933 G.R. THE PEOPLE OF vs. POTENCIANO TANEO, defendant-appellant. No. THE PHILIPPINE ISLANDS, L-37673 plaintiff-appellee,

Carlos S. Tan for appellant. Attorney-General Jaranilla for appellee. , J.: Potenciano Tadeo live with his wife in his parents house of the barrio of Dolores, municipality of Ormoc, Leyte. On January 16, 1932, a fiesta was being celebrated in the said barrio and visitors were entertained in the house. Among them were Fred Tanner and Luis Malinao. Early that afternoon, Potenciano Taneo, went to sleep and while sleeping, he suddenly got up, left the room bolo in hand and, upon meeting his wife who tried to stop him, he wounded her in the abdomen. Potenciano Taneo attacked Fred Tanner and Luis Malinao and tried to attack his father after which he wounded himself. Potencianos wife who was then seven months pregnant, died five days later as a result of her wound, and also the foetus which was asphyxiated in the mothers womb. An information for parricide was filed against Potenciano Taneo, and upon conviction he was sentenced by the trial court to reclusion perpetua with the accessory penalties, to indemnity the heirs of the deceased in the sum of P500 and to pay the costs. From this sentence, the defendant appealed. It appears from the evidence that the day before the commission of the crime the defendant had a quarrel over a glass of tuba with Enrique Collantes and Valentin Abadilla, who invited him to come down to fight, and when he was about to go down, he was stopped by his wife and his mother. On the day of the commission of the crime, it was noted that the defendant was sad and weak, and early in the afternoon he had a severe stomachache which made it necessary for him to go to bed. It was then when he fell asleep. The defendant states that when he fell asleep, he dreamed that Collantes was trying to stab him with a bolo while Abadilla held his feet, by reason of which he got up; and as it seemed to him that his enemies were inviting him to come down, he armed himself with a bolo and left the room. At the door, he met his wife who seemed to say to him that she was wounded. Then he fancied seeing his wife really wounded and in desperation wounded himself. As his enemies seemed to multiply around him, he attacked everybody that came his way. The evidence shows that the defendant not only did not have any trouble with his wife, but that he loved her dearly. Neither did he have any dispute with Tanner and Malinao, or have any motive for assaulting them. Our conclusion is that the defendant acted while in a dream and his acts, with which he is charged, were not voluntary in the sense of entailing criminal liability. In arriving at this conclusion, we are taking into consideration the fact that the apparent lack of a motive for committing a criminal act does not necessarily mean that there are none, but that simply they are not known to us, for we cannot probe into depths of ones conscience where they may be found, hidden away and inaccessible to our observation. We are also conscious of the fact that an extreme moral perversion may lead a man commit a crime without a real motive but just for the sake of committing it. But under the special circumstances of the case, in which the victim was the 41

42 defendants own wife whom he dearly loved, and taking into consideration the fact that the defendant tried to attack also his father, in whose house and under whose protection he lived, besides attacking Tanner and Malinao, his guests, whom he himself invited as may be inferred from the evidence presented, we find not only a lack of motives for the defendant to voluntarily commit the acts complained of, but also motives for not committing said acts. Doctor Serafica, an expert witness in this case, is also of the same opinion. The doctor stated that considering the circumstances of the case, the defendant acted while in a dream, under the influence of an hallucination and not in his right mind. We have thus far regarded the case upon the supposition that the wound of the deceased was direct result of the defendants act performed in order to inflict it. Nevertheless we may say further that the evidence does not clearly show this to have been the case, but that it may have been caused accidentally. Nobody saw how the wound was inflicted. The defendant did not testify that he wounded his wife. He only seemed to have heard her say that she was wounded. What the evidence shows is that the deceased, who was in the sala, intercepted the defendant at the door of the room as he was coming out. The defendant did not dream that he was assaulting his wife but he was defending himself from his enemies. And so, believing that his wife was really wounded, in desperation, he stabbed himself. In view of all these considerations, and reserving the judgment appealed from, the courts finds that the defendant is not criminally liable for the offense with which he is charged, and it is ordered that he be confined in the Government insane asylum, whence he shall not be released until the director thereof finds that his liberty would no longer constitute a menace, with costs de oficio. So ordered. Street, Ostrand, Abad Santos, and Butte, JJ., concur.

42

43

Republic SUPREME Manila EN BANC G.R. No. L-5272 March 19, 1910

of

the

Philippines COURT

THE vs. AH CHONG, defendant-appellant. Gibb & Attorney-General Villamor, for appellee. CARSON, J.:

UNITED

STATES, plaintiff-appellee,

Gale,

for

appellant.

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct: The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room. On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow had been inflicted by the person 43

44 who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds. There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection. The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibaez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man. The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings. No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber. Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day. The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law. At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense. Article 8 of the Penal Code provides that The following are not delinquent and are therefore exempt from criminal liability: xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances: (1) Illegal aggression. 44

45 (2) Reasonable necessity of the means employed to prevent or repel it. (3) Lack of sufficient provocation on the part of the person defending himself. Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow. But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge. The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith. In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.) The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability 45

46 resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another. Article 1 of the Penal Code is as follows: Crimes or misdemeanors are voluntary acts and ommissions punished by law. Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear. An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit. The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.) Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real. Silvela, in discussing the doctrine herein laid down, says: In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.) And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language: It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime. And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no 46

47 crime because of the lack of the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal negligence." And to the same effect in its sentence of December 30, 1896, it made use of the following language: . . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court. That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows: He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime. He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees. In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in article 81. The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper. The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor. The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.) But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present this doctrine: 47

48 In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine confirmed by Legal maxims. The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an act done by me against my will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.) Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.) But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here 48

49 is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.) Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted. If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be the law will not punish him though they are in truth otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.) The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the "act punished by law" was committed "voluntarily." Parson, C.J., in the Massachusetts court, once said: If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.) In this case, Parker, J., charging the petit jury, enforced the doctrine as follows: A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is 49

50 discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.) To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar. QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) . QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the 50

51 circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.) QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.) A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under his charge. The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered. Johnson Moreland Arellano, C.J., and Mapa, J., dissent. and Elliott, JJ., concur.

Separate Opinions TORRES, J., dissenting:

51

52 The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568 of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and while the act was done without malice or criminal intent it was, however, executed with real negligence, for the acts committed by the deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person who was accustomed to enter said room, without any justifiable motive. By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be sentenced to the penalty of one year and one month of prision correctional, to suffer the accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with the costs of both instances, thereby reversing the judgment appealed from.

EN BANC PEOPLE G. R. No. L-17958 February 27, 1922 -versusOF Plaintiff-Appellee , THE PHILIPPINE ISLANDS,

52

53 LOL-LO Defendants-Appellants. DECISION MALCOLM, J : AND SARAW,

The days when pirates roamed the seas, when the picturesque buccaneers - Captain Avery and Captain Kidd and Bartholomew Roberts - gripped the imagination, when grotesque brutes like Blackbeard flourished, seem far away in the pages of history and romance. Nevertheless, the record before us tells a tale of twentieth century piracy in the south seas, but stripped of all touches of chivalry or of generosity, so as to present a horrible case of rapine and near murder. On or about June 30, 1920, two boats left Matuta, a Dutch possession, for Peta, another Dutch possession. In one of the boats was one individual, a Dutch subject, and in the other boat eleven men, women, and children, likewise subjects of Holland. After a number of days of navigation, at about 7 o'clock in the evening, the second boat arrived between the Islands of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on the Dutch boat, took for themselves all of the cargo, attacked some of the men, and brutally violated two of the women by methods too horrible to described. All of the persons on the Dutch boat, with the exception of the two young women, were again placed on it and holes were made in it, with the idea that it would submerge, although as a matter of fact, these people, after eleven days of hardship and privation, were succored. Taking the two women with them, and repeatedly violating them, the Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauders were Lol-lo, who also raped one of the women, and Saraw. At Maruro, the two women were able to escape. Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There they were arrested and were charged in the Court of First Instance of Sulu with the crime of piracy. A demurrer was interposed by counsel de officio for the Moros, based on the grounds that the offense charged was not within the jurisdiction of the Court of First Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a public offense, under the laws in force in the Philippine Islands. After the demurrer was overruled by the trial judge, a trial was had, and a judgment was rendered finding the two defendants guilty and sentencing each of them to life imprisonment (cadena perpetua), to return together with Kinawalang and Maulanis, defendants in another case, to the offended parties, the thirty-nine sacks of copras which had been robbed, or to indemnify them in the amount of 942 rupees, and to pay a onehalf part of the costs. A very learned and exhaustive brief has been filed in this Court by the attorneyde officio. By a process of elimination, however, certain questions can be quickly disposed of. The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is robbery or forcible depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and intention of universal hostility. It cannot be contended with any degree of force as was done in the lower court and as is gain done in this Court, that the Court of First Instance was without jurisdiction of the case. Pirates are in law hostes humani generis. Piracy is a crime 53

54 not against any particular state but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. The jurisdiction of piracy, unlike all other crimes, has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not neutral to crimes." (U. S. vs. Furlong [1820], 5 Wheat., 184). The most serious question which is squarely presented to this court for decision for the first time is whether or not the provisions of the Penal Code dealing with the crime of piracy are still in force. Articles 153 to 156 of the Penal Code read as follows: "Art. 153. The crime of piracy committed against Spaniards, or the subjects of another nation not at war with Spain, shall be punished with a penalty ranging from cadena temporal to cadena perpetua. "If the crime be committed against nonbelligerent subjects of another nation at war with Spain, it shall be punished with the penalty or presidio mayor. "Art. 154. Those who commit the crimes referred to in the first paragraph of the next preceding article shall suffer the penalty of cadena perpetua or death, and those who commit the crimes referred to in the second paragraph of the same article, from cadena temporal to cadena perpetua: "1. Whenever they have seized some vessel by boarding or firing upon the same. "2. Whenever the crime is accompanied by murder, homicide, or by any of the physical injuries specified in articles four hundred and fourteen and four hundred and fifteen and in paragraphs one and two of article four hundred and sixteen. "3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter II, Title IX, of the book. "4. Whenever the pirates have abandoned any persons without means of saving themselves.

"5. In every case, the captain or skipper of the pirates. "Art. 155. With respect to the provisions of this title as well as all others of this code, when Spain is mentioned it shall be understood as including any part of the national territory. "Art. 156. For the purpose of applying the provisions of this code, every person, who, according to the Constitution of the Monarchy, has the status of a Spaniard shall be considered as such." The general rules of public law recognized and acted on by the United States relating to the effect of a transfer of territory from another State to the United States are well-known. The political law of the former sovereignty is necessarily changed. The municipal law in so far as it is consistent with the Constitution, the laws of the United States or the characteristics and institutions of the government, remains in force. As a corollary to the main rules, laws subsisting at the time of transfer, designed to secure good order and peace in the community, which are strictly of a municipal character, continue until by direct action of the new government they are altered or repealed. [Chicago, Rock Island, etc., R. Co. vs. McGlinn (1885), 114 U.S., 542]. 54

55 These principles of the public law were given specific application to the Philippines by the Instructions of President McKinley of May 19,1889, to General Wesley Merritt, the Commanding General of the Army of Occupation in the Philippines, when he said: "Thought the powers of the military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property, and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force, and to be administered by the ordinary tribunals, substantially as they before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion." [Official Gazette, Preliminary Number, Jan. 71. 1903, p. 1. See also General Merritt's Proclamation of August 14, 1898]. It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to include the Philippine Islands. Article 156 of the Penal Code of the Penal Code in relation to article 1 of the Constitution of the Spanish Monarchy, would also make the provisions of the Code applicable not only to Spaniards but to Filipinos. The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil law, and he has never been disputed. The specific provisions of the Penal Code are similar in tenor to statutory provisions elsewhere and to the concepts of the public law. This must necessarily be so, considering that the Penal Code finds its inspiration in this respect in the Novelas, the Partidas, and the Novisima Recopilacion. The Constitution of the United States declares that the Congress shall have the power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. [U.S Const. Art. I, sec. 8, cl. 10]. The Congress, in putting on the statute books the necessary ancillary legislation, provided that whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life. [U.S. Crim. Code, Sec. 290; penalty formerly death: U.S. Rev. Stat., sec. 5368]. The framers of the Constitution and the members of Congress were content to let a definition of piracy rest on its universal conception under the law of nations. It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are not inconsistent with the corresponding provisions in force in the United States. By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of articles of the Penal Code, like the articles dealing with the crime of piracy, would be that wherever "Spain" is mentioned, it should be substituted by the words "United States" and wherever "Spaniards" are mentioned, the word should be substituted by the expression "citizens of the United States and citizens of the Philippine Islands." Somewhat similar reasoning led this court in the case of United States vs. Smith [(1919); 39 Phil., 533] to give to the word "authority" as found in the penal Code a limited meaning, which would no longer comprehend all religious, military, and civil officers, but only public officers in the Government of the Philippine Islands. Under the construction above indicated, Article 153 of the Penal Code would read as follows: "The crime of piracy committed against citizens of the United States and citizens of the Philippine Islands, or the subjects of another nation not at war with the United States, shall be punished with a penalty ranging from cadena temporal to 55

56 cadena perpetua.

"If the crime be committed against nonbelligerent subjects of another nation at war with the United States, it shall be punished with the penalty of presidio mayor." We hold those provisions of the Penal Code dealing with the crime of piracy, notably Articles 153 and 154, to be still in force in the Philippines. The crime falls under the first paragraph of Article 153 of the Penal Code in relation to Article 154. There are present at least two of the circumstances named in the last cited article as authorizing either cadena perpetua or death. The crime of piracy was accompanied by (1) an offense against chastity and (2) the abandonment of persons without apparent means of saving themselves. It is, therefore, only necessary for us to determine as to whether the penalty of cadena perpetua or death should be imposed. In this connection, the trial court, finding present the one aggravating circumstance of nocturnity, and compensating the same by the one mitigating circumstance of lack of instruction provided by article 11, as amended, of the Penal Code, sentenced the accused to life imprisonment. At least three aggravating circumstances, that the wrong done in the commission of the crime was deliberately augmented by causing other wrongs not necessary for its commission, that advantage was taken of superior strength, and that means were employed which added ignominy to the natural effects of the act, must also be taken into consideration in fixing the penalty. Considering, therefore, the number and importance of the qualifying and aggravating circumstances here present, which cannot be offset by the sole mitigating circumstance of lack of instruction, and the horrible nature of the crime committed, it becomes our duty to impose capital punishment. The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death penalty upon the defendant and appellant Lol-lo [the accused who raped one of the women] but is not unanimous with regard to the defendant and appellant Saraw, since one member of the Court, Mr. Justice Romualdez, registers his nonconformity. In accordance with the provisions of Act No. 2726, it results, therefore, that the judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy and is sentenced therefor to be hung until dead, at such time and place as shall be fixed by the Judge of First Instance of the Twenty-sixth Judicial District. The two appellants together with Kinawalang and Maulanis, defendants in another case, shall indemnify jointly and severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part of the cost of both instances. So ordered. Araullo, C.J., Johnson, Avancena, Villamor, Ostrand, Johns, and Romualdez,JJ., concur.

56

57

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 129169 November 17, 1999 NATIONAL IRRIGATION ADMINISTRATION (NIA), petitioner, vs. HONORABLE COURT OF APPEALS (4th Division), CONSTRUCTION INDUSTRY ARBITRATION COMMISSION, and HYDRO RESOURCES CONTRACTORS CORPORATION, respondents. DAVIDE, JR., C.J.: In this special civil action for certiorari under Rule 65 of the Rules of Court, the National Irrigation Administration (hereafter NIA), seeks to annul and set aside the Resolutions 1 of the Court of Appeals in CA-GR. SP No. 37180 dated 28 June 1996 and 24 February 1997, which dismissed respectively NIA's petition for certiorari and prohibition against the Construction Industry Arbitration Commission (hereafter CIAC), and the motion for reconsideration thereafter filed. Records show that in a competitive bidding held by NIA in August 1978, Hydro Resources Contractors Corporation (hereafter HYDRO) was awarded Contract MPI-C-2 for the construction of the main civil works of the Magat River MultiPurpose Project. The contract provided that HYDRO would be paid partly in Philippine pesos and partly in U.S. dollars. HYDRO substantially completed the works under the contract in 1982 and final acceptance by NIA was made in 1984. HYDRO thereafter determined that it still had an account receivable from NIA representing the dollar rate differential of the price escalation for the contract. 2 After unsuccessfully pursuing its case with NIA, HYDRO, on 7 December 1994, filed with the CIAC a Request for Adjudication of the aforesaid claim. HYDRO nominated six arbitrators for the arbitration panel, from among whom CIAC appointed Engr. Lauro M. Cruz. On 6 January 1995, NIA filed its Answer wherein it questioned the jurisdiction of the CIAC alleging lack of cause of action, laches and estoppel in view of HYDRO's alleged failure to avail of its right to submit the dispute to arbitration within the prescribed period as provided in the contract. On the same date, NIA filed a Compliance wherein it nominated six arbitrators, from among whom CIAC appointed Atty. Custodio O. Parlade, and made a counterclaim for P1,000,000 as moral damages; at least P100,000 as exemplary damages; P100,000 as attorney's fees; and the costs of the arbitration. 3 The two designated arbitrators appointed Certified Public Accountant Joven B. Joaquin as Chairman of the Arbitration Panel. The parties were required to submit copies of the evidence they intended to present during the proceedings and were provided the draft Terms of Reference. 4 At the preliminary conference, NIA through its counsel Atty. Joy C. Legaspi of the Office of the Government Corporate Counsel, manifested that it could not admit the genuineness of HYDRO's evidence since NIA's records had already been destroyed. NIA requested an opportunity to examine the originals of the documents which HYDRO agreed to provide. 5 After reaching an accord on the issues to be considered by the arbitration panel, the parties scheduled the dates of hearings and of submission of simultaneous memoranda. 6 On 13 March 1995, NIA filed a Motion to Dismiss 7 alleging lack of jurisdiction over the disputes. NIA contended that there was no agreement with HYDRO to submit the dispute to CIAC for arbitration considering that the construction contract was executed in 1978 and the project completed in 1982, whereas the Construction Industry Arbitration Law creating CIAC was signed only in 1985; and that while they have agreed to arbitration as a mode of settlement of disputes, they could not have contemplated submission of their disputes to CIAC. NIA further argued that records show that it had not voluntarily submitted itself to arbitration by CIAC citing TESCO Services, Inc. v. Hon. Abraham Vera, et al., 8 wherein it was ruled: 57

58 CIAC did not acquire jurisdiction over the dispute arising from the sub-contract agreement between petitioner TESCO and private respondent LAROSA. The records do not show that the parties agreed to submit the disputes to arbitration by the CIAC . . . . While both parties in the sub-contract had agreed to submit the matter to arbitration, this was only between themselves, no request having been made by both with the CIAC. Hence, as already stated, the CIAC, has no jurisdiction over the dispute. . . . . Nowhere in the said article (sub-contract) does it mention the CIAC, much less, vest jurisdiction with the CIAC. On 11 April 1995, the arbitral body issued an order 9 which deferred the determination of the motion to dismiss and resolved to proceed with the hearing of the case on the merits as the grounds cited by NIA did not seem to be "indubitable." NIA filed a motion for reconsideration of the aforesaid Order. CIAC in denying the motion for reconsideration ruled that it has jurisdiction over the HYDRO's claim over NIA pursuant to E.O 1008 and that the hearing should proceed as scheduled. 10 On 26 May 1996, NIA filed with the Court of Appeals an original action of certiorari and prohibition with prayer for restraining order and/or injunction, seeking to annul the Orders of the CIAC for having been issued without or in excess of jurisdiction. In support of its petition NIA alleged that: A RESPONDENT CIAC HAS NO AUTHORITY OR JURIDICTION TO HEAR AND TRY THIS DISPUTE BETWEEN THE HEREIN PARTIES AS E.O. NO. 1008 HAD NO RETROACTIVE EFFECT. B THE DISPUTE BETWEEN THE PARTIES SHOULD BE SETTLED IN ACCORDANCE WITH GC NO. 25, ART. 2046 OF THE CIVIL CODE AND R.A. NO. 876 THE GOVERNING LAWS AT THE TIME CONTRACT WAS EXECUTED AND TERMINATED. C E.O. NO. 1008 IS A SUBSTANTIVE LAW, NOT MERELY PROCEDURAL AS RULED BY THE CIAC. D AN INDORSEMENT OF THE AUDITOR GENERAL DECIDING A CONTROVERSY IS A DECISION BECAUSE ALL THE ELEMENTS FOR JUDGMENT ARE THERE; THE CONTROVERSY, THE AUTHORITY TO DECIDE AND THE DECISION. IF IT IS NOT APPEALED SEASONABLY, THE SAME BECOMES FINAL. E NIA HAS TIMELY RAISED THE ISSUE OF JURISDICTION. IT DID NOT WAIVE NOR IS IT ESTOPPED FROM ASSAILING THE SAME. F THE LEGAL DOCTRINE THAT JURISDICTION IS DETERMINED BY THE STATUTE IN FORCE AT THE TIME OF THE COMMENCEMENT OF THE ACTION DOES NOT ONLY APPLY TO THE INSTANT CASE. 11 The Court of Appeals, after finding that there was no grave abuse of discretion on the part of the CIAC in issuing the aforesaid Orders, dismissed the petition in its Resolution dated 28 June 1996. NIA's motion for reconsideration of the said decision was likewise denied by the Court of Appeals on 26 February 1997. On 2 June 1997, NIA filed before us an original action for certiorari and prohibition with urgent prayer for temporary restraining order and writ of preliminary injunction, praying for the annulment of the Resolutions of the Court of Appeals dated 28 June 1996 and 24 February 1997. In the said special civil action, NIA merely reiterates the issues it raised before the Court of Appeals. 12 We take judicial notice that on 10 June 1997, CIAC rendered a decision in the main case in favor of HYDRO. 13 NIA assailed the said decision with the Court of Appeals. In view of the pendency of the present petitions before us the appellate court issued a resolution dated 26 March 1998 holding in abeyance the resolution of the same until after the instant petitions have been finally decided. 14 At the outset, we note that the petition suffers from a procedural defect that warrants its outright dismissal. The questioned resolutions of the Court of Appeals have already become final and executory by reason of the failure of NIA 58

59 to appeal therefrom. Instead of filing this petition for certiorari under Rule 65 of the Rules of Court, NIA should have filed a timely petition for review under Rule 45. There is no doubt that the Court of Appeals has jurisdiction over the special civil action for certiorari under Rule 65 filed before it by NIA. The original jurisdiction of the Court of Appeals over special civil actions for certiorari is vested upon it under Section 9(1) of B.P. 129. This jurisdiction is concurrent with the Supreme Court 15 and with the Regional Trial Court. 16 Thus, since the Court of Appeals had jurisdiction over the petition under Rule 65, any alleged errors committed by it in the exercise of its jurisdiction would be errors of judgment which are reviewable by timely appeal and not by a special civil action of certiorari. 17 If the aggrieved party fails to do so within the reglementary period, and the decision accordingly becomes final and executory, he cannot avail himself of the writ of certiorari, his predicament being the effect of his deliberate inaction. 18 The appeal from a final disposition of the Court of Appeals is a petition for review under Rule 45 and not a special civil action under Rule 65 of the Rules of Court, now Rule 45 and Rule 65, respectively, of the 1997 Rules of Civil Procedure. 19 Rule 45 is clear that decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed to this Court by filing a petition for review, which would be but a continuation of the appellate process over the original case. 20 Under Rule 45 the reglementary period to appeal is fifteen (15) days from notice of judgment or denial of motion for reconsideration. 21 In the instant case the Resolution of the Court of Appeals dated 24 February 1997 denying the motion for reconsideration of its Resolution dated 28 June 1997 was received by NIA on 4 March 1997. Thus, it had until 19 March 1997 within which to perfect its appeal. NIA did not appeal. What it did was to file an original action for certiorari before this Court, reiterating the issues and arguments it raised before the Court of Appeals. For the writ of certiorari under Rule 65 of the Rules of Court to issue, a petitioner must show that he has no plain, speedy and adequate remedy in the ordinary course of law against its perceived grievance. 22 A remedy is considered "plain, speedy and adequate" if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency. 23 In this case, appeal was not only available but also a speedy and adequate remedy. Obviously, NIA interposed the present special civil action of certiorari not because it is the speedy and adequate remedy but to make up for the loss, through omission or oversight, of the right of ordinary appeal. It is elementary that the special civil action of certiorari is not and cannot be a substitute for an appeal, where the latter remedy is available, as it was in this case. A special civil action under Rule 65 of the Rules of Court will not be a cure for failure to timely file a petition for review on certiorari under Rule 45 of the Rules of Court. 24 Rule 65 is an independent action that cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that under Rule 45, 25 especially if such loss or lapse was occasioned by one's own neglect or error in the choice of remedies. 26 For obvious reasons the rules forbid recourse to a special civil action for certiorari if appeal is available, as the remedies of appeal and certiorari are mutually exclusive and not alternative or successive. 27 Although there are exceptions to the rules, none is present in the case at bar. NIA failed to show circumstances that will justify a deviation from the general rule as to make available a petition for certiorari in lieu of taking an appropriate appeal. Based on the foregoing, the instant petition should be dismissed. In any case, even if the issue of technicality is disregarded and recourse under Rule 65 is allowed, the same result would be reached since a review of the questioned resolutions of the CIAC shows that it committed no grave abuse of discretion. Contrary to the claim of NIA, the CIAC has jurisdiction over the controversy. Executive Order No. 1008, otherwise known as the "Construction Industry Arbitration Law" which was promulgated on 4 February 1985, vests upon CIAC original and exclusive jurisdiction over disputes arising from, or connected with contracts entered into by parties involved in construction in the Philippines, whether the dispute arises before or after the completion of the contract, or after the abandonment or breach thereof. The disputes may involve government or private contracts. For the Board to acquire jurisdiction, the parties to a dispute must agree to submit the same to voluntary arbitration. 28

59

60 The complaint of HYDRO against NIA on the basis of the contract executed between them was filed on 7 December 1994, during the effectivity of E.O. No. 1008. Hence, it is well within the jurisdiction of CIAC. The jurisdiction of a court is determined by the law in force at the time of the commencement of the action. 29 NIA's argument that CIAC had no jurisdiction to arbitrate on contract which preceded its existence is untenable. E.O. 1008 is clear that the CIAC has jurisdiction over all disputes arising from or connected with construction contract whether the dispute arises before or after the completion of the contract. Thus, the date the parties entered into a contract and the date of completion of the same, even if these occurred before the constitution of the CIAC, did not automatically divest the CIAC of jurisdiction as long as the dispute submitted for arbitration arose after the constitution of the CIAC. Stated differently, the jurisdiction of CIAC is over the dispute, not the contract; and the instant dispute having arisen when CIAC was already constituted, the arbitral board was actually exercising current, not retroactive, jurisdiction. As such, there is no need to pass upon the issue of whether E.O. No. 1008 is a substantive or procedural statute. NIA also contended that the CIAC did not acquire jurisdiction over the dispute since it was only HYDRO that requested for arbitration. It asserts that to acquire jurisdiction over a case, as provided under E.O. 1008, the request for arbitration filed with CIAC should be made by both parties, and hence the request by one party is not enough. It is undisputed that the contracts between HYDRO and NIA contained an arbitration clause wherein they agreed to submit to arbitration any dispute between them that may arise before or after the termination of the agreement. Consequently, the claim of HYDRO having arisen from the contract is arbitrable. NIA's reliance with the ruling on the case of Tesco Services Incorporated v. Vera, 30 is misplaced. The 1988 CIAC Rules of Procedure which were applied by this Court in Tesco case had been duly amended by CIAC Resolutions No. 2-91 and 3-93, Section 1 of Article III of which read as follows: Submission to CIAC Jurisdiction An arbitration clause in a construction contract or a submission to arbitration of a construction contract or a submission to arbitration of a construction dispute shall be deemed an agreement to submit an existing or future controversy to CIAC jurisdiction, notwithstanding the reference to a different arbitration institution or arbitral body in such contract or submission. When a contract contains a clause for the submission of a future controversy to arbitration, it is not necessary for the parties to enter into a submission agreement before the claimant may invoke the jurisdiction of CIAC. Under the present Rules of Procedure, for a particular construction contract to fall within the jurisdiction of CIAC, it is merely required that the parties agree to submit the same to voluntary arbitration. Unlike in the original version of Section 1, as applied in the Tesco case, the law as it now stands does not provide that the parties should agree to submit disputes arising from their agreement specifically to the CIAC for the latter to acquire jurisdiction over the same. Rather, it is plain and clear that as long as the parties agree to submit to voluntary arbitration, regardless of what forum they may choose, their agreement will fall within the jurisdiction of the CIAC, such that, even if they specifically choose another forum, the parties will not be precluded from electing to submit their dispute before the CIAC because this right has been vested upon each party by law, i.e., E.O. No. 1008. 31 Moreover, it is undeniable that NIA agreed to submit the dispute for arbitration to the CIAC. NIA through its counsel actively participated in the arbitration proceedings by filing an answer with counterclaim, as well as its compliance wherein it nominated arbitrators to the proposed panel, participating in the deliberations on, and the formulation of, the Terms of Reference of the arbitration proceeding, and examining the documents submitted by HYDRO after NIA asked for the originals of the said documents. 32 As to the defenses of laches and prescription, they are evidentiary in nature which could not be established by mere allegations in the pleadings and must not be resolved in a motion to dismiss. Those issues must be resolved at the trial of the case on the merits wherein both parties will be given ample opportunity to prove their respective claims and defenses. 33 Under the rule 34 the deferment of the resolution of the said issues was, thus, in order. An allegation of prescription can effectively be used in a motion to dismiss only when the complaint on its face shows that indeed the action has already prescribed. 35 In the instant case, the issue of prescription and laches cannot be resolved on the basis solely of the complaint. It must, however, be pointed that under the new rules, 36 deferment of the resolution is no longer permitted. The court may either grant the motion to dismiss, deny it, or order the amendment of the pleading. 60

61 WHEREFORE, the instant petition is DISMISSED for lack of merit. The Court of Appeals is hereby DIRECTED to proceed with reasonable dispatch in the disposition of C.A. G.R. No. 44527 and include in the resolution thereof the issue of laches and prescription. SO ORDERED. Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur. Footnotes 1 Rollo, 37-50. Per Salas, B., J., with Paras, G. and Austria-Martinez, A., JJ., concurring. 2 Rollo, 151-152. 3 Id., 73, 112, 152-153. 4 Id., 73. 5 Rollo, 74. 6 Id., 113. 7 See Annex "A," C.A. Rollo, 163-164. 8 209 SCRA 440 [1992]. 9 Annex "I," Rollo, 73-78. 10 Annex "K," C.A. Rollo, 84-87. 11 Petition, Id., 19. 12 Rollo, 17. 13 Id., 111-129. Per Joaquin, J; Parlade, C., and Cruz, L. 14 Id., 338. 15 Sec. 5(1), Article VIII, Constitution; Section 17, Judiciary Act of 1948, as amended. 16 Sec. 21(1) of B.P. Blg. 129; See also Morales v. Court of Appeals, et al., 283 SCRA 211 [1997]; PAA v. Court of Appeals, 282 SCRA 448 [1997]. 17 B.F. Corporation v. Court of Appeals, 288 SCRA 267 [1998]. 18 Giron, et al. v. Caluag, et al., 8 SCRA 285 [1963]. 19 Director of Lands v. Court of Appeals, 276 SCRA 276 [1997]. 20 Heirs of Marcelino Pagobo v. Court of Appeals, 280 SCRA 870, 883 [1997]. 21 Sec. 1, Rule 45 of the Rules of Court; National Investment and Development Corp. v. Court of Appeals, 270 SCRA 497 [1997]. 22 Sunshine Transportation v. NLRC, 254 SCRA 51, 55 [1996]. 23 See Silvestre v. Torres, 57 Phil. 885 [1933] citing 11 C.J. 113. 24 De Espina v. Abaya, 16 SCRA 312 [1991]; Escudero v. Dulay, 158 SCRA 69 [1998]. 25 Heirs of Marcelino Pagobo v. Court of Appeals, 280 SCRA 870, 883 [1997]. 26 Sempio, et al. v. Court of Appeals, et al., 263 SCRA 617, 624, citing Fajardo v. Bautista, 232 SCRA 291 [1994]; Aqualyn Corp. v. CA, 214 SCRA 312 [1992]; Sy v. Romero, 214 SCRA 193 [1992]. 27 Federation of Free Workers v. Inciong, 208 SCRA 157 [1992]. 28 See Section 4. 29 People v. Magallanes, et al., 249 SCRA 212 [1995]. 30 209 SCRA 440 [1992]. 31 China Chang Jiang Energy Corporation v. Rosal Infrastructure Builders, et al., Third Division Resolution dated 30 September 1996. 32 Rollo, 84. 33 See Espano, Sr. v. Court of Appeals, 268 SCRA 211 [1997]. 34 Sec. 3, Rule 16, Rules of Court. 35 Francisco, et al., v. Robles, et al., 94 Phil. 1035 [1954]. 36 Sec. 3, Rule 16, 1997 Rules of Civil Procedure. 61

62

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-41299 February 21, 1983 SOCIAL SECURITY SYSTEM, petitioner, vs. COURT OF APPEALS, DAVID B. CRUZ, SOCORRO CONCIO CRUZ, and LORNA C. CRUZ, respondents. The Solicitor General for petitioner. Eribert D. Ignacio for respondents David Cruz, Socorro Concio Cruz and Lorna Cruz.

MELENCIO-HERRERA, J.: This Petition for Review on certiorari of the Decision of the Court of Appeals 1 stems from the following facts, as narrated by the Trial Court, adopted by the Court of Appeals, and quoted by both petitioner 2 and private respondents 3: Sometime in March, 1963 the spouses David B. Cruz and Socorro Concio Cruz applied for and were granted a real estate loan by the SSS with their residential lot located at Lozada Street, Sto. Rosario, Pateros, Rizal covered by Transfer Certificate of Title No. 2000 of the Register of Deeds of Rizal as collateral. Pursuant to this real estate ban said spouses executed on March 26, 1963 the corresponding 62

63 real estate mortgage originally in the amount of P39,500.00 which was later increased to P48,000.00 covering the aforementioned property as shown in their mortgage contract, Exhibit A and 1. From the proceeds of the real estate loan the mortgagors constructed their residential house on the mortgaged property and were furnished by the SSS with a passbook to record the monthly payments of their amortizations (Exhibits B and B-1). The mortgagors, plaintiffs herein, complied with their monthly payments although there were times when delays were incurred in their monthly payments which were due every first five (5) days of the month (Exhibits 3-A to 3-N). On July 9, 1968, defendant SSS filed an application with the Provincial Sheriff of Rizal for the foreclosure of the real estate mortgage executed by the plaintiffs on the ground, among others: That the conditions of the mortgage have been broken since October, 1967 with the default on the part of the mortgagor to pay in full the installments then due and payable on the principal debt and the interest thereon, and, all of the monthly installments due and payable thereafter up to the present date; ... That by the terms of the contract herein above referred to, the indebtedness to the mortgagee as of June, 1968 amounts to Ten Thousand Seven Hundred Two Pesos & 58/100 (P10,702.58), Philippine Currency, excluding interests thereon, plus 20% of the total amount of the indebtedness as attorney's fees, also secured by the said mortgage. (Exhibit "C ") Pursuant to this application for foreclosure, the notice of the Sheriff's Sale of the mortgaged property was initially published in the Sunday Chronicle in its issue of July 14, 1968 announcing the sale at public auction of the said mortgaged property. After this first publication of the notice, and before the second publication of the notice, plaintiff herein thru counsel formally wrote defendant SSS, a letter dated July 19, 1968 and received on the same date by said entity demanding, among others, for said defendant SSS to withdraw the foreclosure and discontinue the publication of the notice of sale of their property claiming that plaintiffs were up-to-date in the payment of their monthly amortizations (Exhibits "E" and "E-1"). In answer to this letter defendant SSS sent a telegram to Atty. Eriberto Ignacio requesting him to come to their office for a conference. This telegram was received by said counsel on July 23, 1968 (Exhibit "G " and "G-1 "). To this telegraphic answer, Atty. Ignacio sent a telegraphic reply suggesting instead that a representative of the SSS be sent to him because his clients were the aggrieved parties (Exhibit-. "G-2"). Nothing came out of the telegraphic communications between the parties and the second and third publications of the notice of foreclosure were published successively in the Sunday Chronicle in its issues of July 21 and 28, 1968 (Exhibits "N-1 " and "O-1"). 4 On July 24, 1968, the Cruz spouses, together with their daughter Lorna C. Cruz, instituted before the Court of First Instance of Rizal an action for damages and attorney's fees against the Social Security System (SSS) and the Provincial Sheriff of Rizal alleging, among other things, that they had fully and religiously paid their monthly amortizations and had not defaulted in any payment. In its Answer, with counterclaim, the SSS stressed its right to foreclose the mortgage executed in its favor by private respondents by virtue of the automatic acceleration clause provided in the mortgage contract, even after private respondents had paid their amortization installments. In its counterclaim, the SSS prayed for actual and other damages, as well as attorney's fees, for malicious and baseless statements made by private respondents and published in the Manila Chronicle. On September 23, 1968, the Trial Court enjoined the SSS from holding the sale at public auction of private respondent's property upon their posting of a P2,000.00 bond executed in favor of the SSS. 63

64 The Trial Court rendered judgment on March 5, 1971, the dispositive portion of which reads: WHEREFORE, judgment is rendered against defendant SSS, directing it to pay plaintiffs the following amounts: (a) P2,500.00 as actual damage; (b) P35,000.00 as moral damage; (c) P10,000.00 as exemplary or corrective damages; and (d) P5,000.00 as attorney's fees. Defendant SSS shall further pay the costs. 5 In respect of the moral and temperate damages awarded, the Trial Court stated: With respect to moral and temperate damages, the Court holds that the first publication of the notice was made in good faith but committed by defendant SSS in gross negligence considering the personnel at its command and the ease with which verifications of the actual defaulting mortgagors may be made. On this initial publication of the notice of foreclosure (Exhibits "M" and "M-1"), the Court believes plaintiffs are entitled to the amount of P5,000.00. The second publication of the notice of foreclosure is another matter. There was already notice by plaintiffs to defendant SSS that there was no reason for the foreclosure of their mortgaged property as they were never in default. Instead of taking any corrective measure to rectify its error, defendant SSS adopted a position of righteousness and followed the same course of action contending that no error has open committed. This act of defendant indeed was deliberate, calculated to cow plaintiffs into submission, and made obviously with malice. On this score, the Court believes defendant SSS should pay and indemnify plaintiffs jointly in the sum of P10,000.00. Lastly, on the third publication of the notice of foreclosure, the Court finds this continued publication an outright disregard for the reputation and standing of plaintiffs. The publication having reached a bigger segment of society and also done with malice and callous disregard for the rights of its clients, defendant SSS should compensate plaintiffs jointly in the sum of P20,000.00. All in all, plaintiffs are entitled to P35,000.00 by way of moral damages. 6 On appeal, the Court of Appeals affirmed the lower Court judgment in a Decision promulgated on March 14, 1975, but upon SSS's Motion for Reconsideration, modified the judgment by the elimination of the P5,000.00 moral damages awarded on account of the initial publication of the foreclosure notice. To quote: xxx xxx xxx After a re-examination of the evidence, we find that the negligence of the appellant is not so gross as to warrant moral and temperate damages. The amount of P5,000.00 should be deducted from the total damages awarded to the plaintiffs. WHEREFORE, the decision promulgated on March 14, 1975 is hereby maintained with the sole modification that the amount of P5,000.00 awarded on account of the initial publication is eliminated so that the said amount should be deducted from the total damages awarded to the plaintiffs. SO ORDERED. 7 In so far as exemplary and corrective damages are concerned, the Court of Appeals had this to say. 64

65 The Court finds no extenuating circumstances to mitigate the irresponsible action of defendant SSS and for this reason, said defendant should pay exemplary and corrective damages in the sum of P10,000.00 ... Upon denial of its Motion for Reconsideration by respondent Court, the SSS filed this Petition alleging . I. Respondent Court of Appeals erred in not finding that under Condition No. 10 of the Mortgage contract, which is a self-executing, automatic acceleration clause, all amortizations and obligations of the mortgagors become ipso jure due and demandable if they at any time fail to pay any of the amortizations or interest when due; II. Respondent Court of Appeals erred in holding that a previous notice to the mortgagor was necessary before the mortgage could be foreclosed; III. Respondent Court of Appeals erred in not holding that, assuming that there was negligence committed by subordinate employees of the SSS in staking 'Socorro C. Cruz' for 'Socorro J. Cruz' as the defaulting borrower, the fault cannot be attributed to the SSS, much less should the SSS be made liable for their acts done without its knowledge and authority; IV. Respondent Court of Appeals erred in holding that there is no extenuating circumstance to mitigate the liability of petitioner; V. Respondent Court of Appeals erred in not holding that petitioner is not liable for damages not being a profit-oriented governmental institution but one performing governmental functions petitions. 8 For failure of the First Division to obtain concurrence of the five remaining members (Justices Plana and Gutierrez, Jr. could take no part), the case was referred to the Court en banc. The pivotal issues raised are: (1) whether the Cruz spouses had, in fact, violated their real estate mortgage contract with the SSS as would have warranted the publications of the notices of foreclosure; and (2) whether or not the SSS can be held liable for damages. The first issue revolves around the question of appreciation of the evidence by the lower Court as concurred in by the Court of Appeals. The appraisal should be left undisturbed following the general rule that factual findings of the Court of Appeals are not subject to review by this Court, the present case not being one of the recognized exceptions to that rule. 9 Accordingly, we are upholding the finding of the Court of Appeals that the SSS application for foreclosure was not justified, particularly considering that the real estate loan of P48,000.00 obtained by the Cruzes in March, 1963, was payable in 15 years with a monthly amortization of P425.18, and that as of July 14, 1968, the date of the first notice of foreclosure and sale, the outstanding obligation was still P38,875.06 and not P10,701.58, as published. The appellant was not justified in applying for the extrajudicial foreclosure of the mortgage contract executed in its favor by the spouses, David B. Cruz and Socorro Concio-Cruz, Exh. 'A'. While it is true that the payments of the monthly installments were previously not regular, it is a fact that as of June 30, 1968 the appellee, David B. Cruz and Socorro Concio-Cruz were up-to-date and current in the payment of their monthly installments. Having accepted the prior late payments of the monthly installments, the appellant could no longer suddenly and without prior notice to the mortgagors apply for the extrajudicial foreclosure of the mortgage in July 1968. 10 A similar conclusion was reached by the trial Court. 65

66 Defendant's contention that there was clerical error in the amount of the mortgage loan due as of June, 1968 as per their application for foreclosure of real estate mortgage is a naive attempt to justify an untenable position. As a matter of fact plaintiffs were able to establish that the mortgagor who actually committed the violation of her mortgage loan was a certain 'Socorro J. Cruz' who was in arrears in the amount of P10,702.58 at the time the application for foreclosure of real estate mortgage was filed Exhibits "BB" and "EE"). Defendant mortgagee must have committed an error in picking the record of plaintiff 'Socorro C. Cruz' instead of the record of 'Socorro J. Cruz'. Defendant SSS, however, denied having committed any error and insists that their motion for foreclosure covers the real estate mortgage of spouses David E. Cruz and Socorro C. Cruz. This Court is nonetheless convinced that the foreclosure proceedings should have been on the real estate mortgage of 'Socorro J. Cruz' who was in arrears as of June, 1968 in the amount of P10,701.58, the exact amount mentioned in the application for foreclosure of real estate mortgage by defendant SSS. 11 We come now to the amendability of the SSS to judicial action and legal responsibility for its acts. To our minds, there should be no question on this score considering that the SSS is a juridical entity with a personality of its own. 12 It has corporate powers separate and distinct from the Government. 13 SSS' own organic act specifically provides that it can sue and be sued in Court. 14 These words "sue and be sued" embrace all civil process incident to a legal action. 15 So that, even assuming that the SSS, as it claims, enjoys immunity from suit as an entity performing governmental functions, by virtue of the explicit provision of the aforecited enabling law, the Government must be deemed to have waived immunity in respect of the SSS, although it does not thereby concede its liability. That statutoy law has given to the private-citizen a remedy for the enforcement and protection of his rights. The SSS thereby has been required to submit to the jurisdiction of the Courts, subject to its right to interpose any lawful defense. Whether the SSS performs governmental or proprietary functions thus becomes unnecessary to belabor. For by that waiver, a private citizen may bring a suit against it for varied objectives, such as, in this case, to obtain compensation in damages arising from contract 16 and even for tort. A recent case squarely in point anent the principle, involving the National Power Corporation, is that of Rayo vs. Court of First Instance of Bulacan, 110 SCRA 457 (1981), wherein this Court, speaking through Mr. Justice Vicente Abad Santos, ruled: It is not necessary to write an extended dissertation on whether or not the NPC performs a governmental function with respect to the management and operation of the Angat Dam. It is sufficient to say that the government has organized a private corporation, put money in it and has snowed it to sue and be sued in any court under its charter. (R.A. No. 6395, Sec. 3[d]). As a government owned and controlled corporation, it has a personality of its own, distinct and separate from that of the Government. (See National Shipyards and Steel Corp. vs. CIR, et al., L-17874, August 31, 1963, 8 SCRA 78 1). Moreover, the charter provision that the NPC can 'sue and be sued in any court' is without qualification on the cause of action and accordingly it can include a tort claim such as the one instituted by the petitioners. The proposition that the SSS is not profit-oriented was rejected in the case of SSS Employees' Association vs. Hon. Soriano. 17 But even conceding that the SSS is not, in the main, operated for profit, it cannot be denied that, in so far as contractual loan agreements with private parties are concerned, the SSS enters into them for profit considering that the borrowers pay interest, which is money paid for the use of money, plus other charges. In so far as it is argued that to hold the SSS liable for damages would be to deplete the benefit funds available for its covered members, suffice it to say, that expenditures of the System are not confined to the payment of social security benefits. For example, the System also has to pay the salaries of its personnel. Moreover, drawing a parallel with the 66

67 NASSCO and the Virginia Tobacco Administration, whose funds are in the nature of public funds, it has been held that those funds may even be made the object of a notice of garnishment. 18 What is of paramount importance in this controversy is that an injustice is not perpetrated and that when damage is caused a citizen, the latter should have a right of redress particularly when it arises from a purely private and contractual relationship between said individual and the System. We find, however, that under the circumstances of the case, the SSS cannot be held liable for the damages as awarded by the Trial Court and the Appellate Tribunal. As basis for the award of actual damages, the Trial Court relied on the alleged expenses incurred by private respondents for the wardrobe they were supposed to use during their trip abroad, which was allegedly aborted because of the filing of the foreclosure application by the SSS. We find the foregoing too speculative. There could have been other reasons why the trip did not materialize. Moreover, it appears that private respondents' passports had already expired but that they made no effort to secure new passports. 19 Nor did they secure the necessary visas from the local consulates of foreign countries they intended to visit for their trip abroad. 20 Nor can the SSS be held liable for moral and temperate damages. As concluded by the Court of Appeals "the negligence of the appellant is not so gross as to warrant moral and temperate damages", 21 except that, said Court reduced those damages by only P5,000.00 instead of eliminating them. Neither can we agree with the findings of both the Trial Court and respondent Court that the SSS had acted maliciously or in bad faith. The SSS was of the belief that it was acting in the legitimate exercise of its right under the mortgage contract in the face of irregular payments made by private respondents, and placed reliance on the automatic acceleration clause in the contract. The filing alone of the foreclosure application should not be a ground for an award of moral damages in the same way that a clearly unfounded civil action is not among the grounds for moral damages. 22 With the ruling out of compensatory, moral and temperate damages, the grant of exemplary or corrective damages should also be set aside. 23 Moreover, no proof has been submitted that the SSS had acted in a wanton, reckless and oppressive manner. 24 However, as found by both the Trial and Appellate Courts, there was clear negligence on the part of SSS when they mistook the loan account of Socorro J. Cruz for that of private respondent Socorro C. Cruz. Its attention was called to the error, but it adamantly refused to acknowledge its mistake. The SSS can be held liable for nominal damages. This type of damages is not for the purpose of indemnifying private respondents for any loss suffered by them but to vindicate or recognize their rights which have been violated or invaded by petitioner SSS. 25 The circumstances of the case also justify the award of attorney's fees, as granted by the Trial and Appellate Courts, particularly considering that private respondents were compelled to litigate for the prosecution of their interests. 26 WHEREFORE, the judgment sought to be reviewed is hereby modified in that petitioner SSS shall pay private respondents: P3,000.00 as nominal damages; and P5,000.00 as attorney's fees. Costs against petitioner Social Security System. SO ORDERED. Teehankee, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Vasquez and Relova, JJ., concur. Fernando, C.J., concurs in the result. 67

68 Plana, Escolin ** and Gutierrez, Jr., *** JJ., took no part.

Separate Opinions

AQUINO, J., concurring: I concur. The award of moral damages is not justified under arts. 2219 and 2220 of the Civil Code. I vote to award the private respondents the additional sum of P2,000 as litigation expenses. MAKASIAR, J., dissenting: I dissent. I To begin with, the negligent acts committed by the officers and employees of the petitioner, Social Security System, amounted to not simply a contractual breach but tort. For the record is clear that petitioner's officers and employees were grossly negligent bordering on malice or bad faith in applying for the extrajudicial foreclosure of the mortgage contract executed in its favor by the spouses David B. Cruz and Socorro Concio-Cruz, and that even after private respondents had brought to the attention of the petitioner's officers and employees their mistake, they insisted on their course of action, instead of making the necessary rectifications, which grossly negligent and oppressive acts caused damage to private respondents. As found by the Court of Appeals: The appellant was not justified in applying for the extrajudicial foreclosure of the mortgage contract executed in its favor by the spouses David B. Cruz and Socorro Concio-Cruz, Exh. 'A'. While it is true that the payments of the monthly installments were previously not regular, it is a fact that as of June 30, 1968 the appellees, David B. Cruz and Socorro Concio-Cruz were up-to-date and current in the payment of their monthly installments. Having accepted the prior late payments of the monthly installments, the appellant could no longer suddenly and without prior notice to the mortgagors apply for the extrajudicial foreclosure of the mortgage in July, 1968. It is obvious that the appellant applied for the extra-judicial foreclosure of the mortgage in question because of the gross negligence of its employees. This negligence was aggravated when the appellant, after being informed of the error, insisted on proceeding with the extra-judicial foreclosure by invoking alleged violations of the mortgage contract. But these violations are either too minor to warrant the drastic step of foreclosure or were deemed condoned when the appellant accepted late payments prior to June 30, 1968. Hence the trial court did not err in concluding that 'the act of defendant indeed was deliberate, calculated to cow plaintiffs into submission and made obviously with malice (p. 54, rec.; emphasis supplied). The circumstance that there was a pre-existing contractual relationship between the herein contending parties, does not bar the tort liability of the officers and employees of petitioner; because tort liability may still exist despite presence of contractual relations as the act that breaks the contract may also be a tort, as in this case (Air France vs. Carrascoso, L21438, Sept. 28, 1966, 18 SCRA 155, 168-169; Singson & Castillo vs. Bank of the Philippine Islands, L-24837, June 27, 1968, 23 SCRA 1117, 1119-20). 68

69 Consequently, a tortious act being involved, the applicable provision of law is Article 2180 in relation to Article 2176 of the New Civil Code. Under Article 2180, ... The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. In the case at bar, the petitioner Social Security System as the instrumentality of the State to implement the social justice guarantee enunciated in the Constitution, did not act through a special agent. Hence, the Social Security System cannot be liable for the damages caused by the tortious acts of its officers and employees while in the performance of their regular functions. The remedy therefore of private respondents is to proceed against the guilty officers and employees of petitioner Social Security System as mandated by Article 2176 of the New Civil Code. For as held in the leading case of Merritt vs. Government of the Philippine Islands (34 Phil. 311). The responsibility of the State is limited by Article 1903 to the case wherein it acts through a special agent, ... so that in representation of the state and being bound to act as an agent thereof, he executes the trust confided to him. This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations. While Article 2180 of the New Civil Code was not invoked by the petitioner as a defense, this does not prevent this Tribunal from taking cognizance of the same. For as stressed in Ortigas, Jr. vs. Lufthansa German Airlines (June 30, 1975, 64 SCRA 610, 633), failure to assign a defense as an error on appeal is a pure technicality that should not prevail over the substantial issues in a controversy as the same would not serve the interest of justice, and "this Court is clothed with ample authority to review matters even if they are not assigned as errors in the appeal, if it finds that our consideration is necessary in arriving at a just decision of the case" (citing Saura & Export Co., Inc., May 31, 1963, 8 SCRA 143). Further, We have, time and again, re-stated the rule that the Supreme Court can suspend its own rules to serve the ends of justice (Jose vs. C.A., et al., L-38581, March 31, 1976; Phil. Blooming Mills Employees Organization, et al. vs. PBM Co., et al., L-31195, 51 SCRA 189, 215; Ronquillo vs. Marasigan, May 31, 1962, 5 SCRA 304, 312-313; Ordoveza vs. Raymundo, 63 Phil. 275). The principle that a defense not expressly pleaded is deemed waived unless such failure is satisfactorily explained, is merely a general rule which is subject to exceptions, among which is when the Court can take judicial notice of such defense. In this case, We can take judicial notice of the law, like Article 2180 of the New Civil Code. It must be emphasized that the courts have as much duty as the Commission on August to protect the public treasury from being mulcted or raided illegally. And this becomes more imperative considering that a substantial portion of the funds of the petitioner comes from the contributions of- employees and workers in private firms and is therefore in the nature of a trust fund to be expended only for their welfare and benefit, with the government merely giving some subsidy. Any amount of damages illegally assessed against the Social Security System will deplete the benefit funds available to its covered members for the contingencies of sickness, disability, retirement or death. It cannot likewise be seriously questioned that the Social Security System is comprehended in the definition in Section 2 of the Revised Administrative Code of the term "Government of the Republic of the Philippines ... which refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippine Islands, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the central Government or to the provincial or municipal branches or other forms of local government." And the second paragraph of said Section 2 provides that the term "national government" refers to the central government as distinguished from the different forms of local government. There is nothing therein nor in the Social Security Act, as amended, intimating that the national government does not include the Social Security System. 69

70 It is true that the Social Security System has a corporate or juridical personality of its own. But this does not remove it as an integral part of the national or central government. For such corporate or juridical personality invested in it is more for facility and convenience in the attainment of the objectives for which it was created by the legislative. Such vesting of corporate or juridical personality in the Social Security System was never intended to destroy the shield from liability afforded it as an integral part of the State or Government by Article 2180 of the New Civil Code. Relatedly, such corporate or juridical personality of the Social Security System and the express provision of the law creating the same that it can sue and be sued, have the effect of merely waiving its immunity from suit as an entity performing governmental functions. Such waiver of its immunity from suit is not an admission of its liability. Such waiver merely allows a private citizen a remedy for the enforcement and protection of his rights, but always subject to the lawful defenses of the Social Security System one of which is Article 2180 of the New Civil Code as aforestated. In other words, such waiver of immunity from suit is not equivalent to instant liability. The Social Security System can only be held liable for damages arising from the tortious acts of its officers and employees only if it acts through a special agent, which is not true in the case at bar. II It must be finally stressed that the Social Security System cannot be liable for damages because it is an entity of government performing governmental functions; hence, not profit-oriented. The 1963 doctrine in SSSEA vs. Soriano (7 SCRA 1016 [1963]) that the system is exercising proprietary functions, is no longer controlling. For in 1969, the distinction between constituent and ministrant functions of the Government as laid down in the case of Bacani vs. Nacoco (100 Phil. 468 [1956]) has been obliterated. In the case of Agricultural Credit and Cooperative Financing Administration (ACCFA) vs. Confederation of Unions in Government Corporations and Offices (CUGCO) [30 SCRA 649 (1969)], this Court in re-examining the aforesaid Bacani ruling observed that the trend has been to abandon and reject the traditional "Constituent- Ministrant" criterion in governmental functions in favor of the more responsive postulate that the growing complexities of modern society have rendered the traditional classification of government functions unrealistic and obsolete. WE held in the ACCFA case, thus: The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only 'because it was better equipped to administer for the public welfare than is any private individual or groups of individuals,' continue to lose their well-defined boundaries and to be absorbed within activities that the government must have undertaken in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere, else, the tendency is undoubtedly towards a greater socialization of economic forces. Here of course, this development was envisioned indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice. Chief Justice Fernando, then Associate Justice, in his concurring opinion stressed that: The decision reached by this Court so ably given expression in the opinion of Justice Makalintal, characterized with vigor, clarity and precision, represents what for me is a clear tendency not to be necessarily bound by our previous pronouncements on what activities partake of a nature that is governmental. Of even greater significance, there is a definite rejection of the 'constituent-ministrant' criterion of governmental functions, followed in Bacani vs. National Coconut Corporation. That indeed is cause for gratification. For me at least, there is again full adherence to the basic philosophy of the 70

71 Constitution as to the extensive and vast power lodged in our government to cope with the social and economic problems that even now sorely beset us. There is therefore full concurrence on my part to the opinion of the court, distinguished by its high quality of juristic craftsmanship (pp. 666-667). xxx xxx xxx 4. With the decision reached by us today, the government is freed from the compulsion exerted by the Bacani doctrine of the 'constituent-ministrant' test as a criterion for the type of activity in which it may engage. It constricting effect is consigned to oblivion. No doubts or misgivings need assail us that government efforts to promote the public wealth whether through regulatory legislation of vast scope and emplitude or through the undertaking of business activities, would have to face a searching and rigorous scrutiny. It is clear that their legitimacy cannot be challenged on the ground alone of their being offensive to the implications of the laissez- faire concept. Unless there be a repugnancy then to the limitations expressly set forth in the Constitution to protect individual rights, the government enjoys a much wider latitude of action as to the means it chooses to cope with grave social and economic problems that urgently press for solution. For me, at least, that is to manifest deference to the philosophy of our fundamental law. Hence my full concurrence, as announced at the outset. (pp- 682683, emphasis supplied). The 1935 Constitution declared: Sec. 5. The promotion of social justice to insure the well being and economic security of all the people should be the concern of the State. (Art. II, Declaration of Principles). The present 1973 Constitution provides under its Declaration of Principles and State Policies (Article 11), that The State shall promote social justice to ensure the dignity, welfare, and security of all the people. Towards this end, the State shall regulate the acquisition, ownership, use, enjoyment, and disposition of private property, and equitably diffuse property ownership and profits. (Section 6); and The State shall establish, maintain, and ensure adequate social services in the field of education, health, housing, employment, welfare, and social security to guarantee the enjoyment by the people of a decent standard of living. (Section 7). The strictly governmental function of the SSS is spelled out unmistakably in Section 2 of R.A. No. 1161 entitled "The Social Security Act of 1954," thus: It is hereby declared to be the policy of the Republic of the Philippines to develop, establish gradually and perfect a social security system which shall be suitable to the needs of the people throughout the Philippines, and shall provide protection against the hazards of disability, sickness, old age and death. As stated in the Explanatory Note to the Bill that became R. A. No. 1161, the Social Security Act of 1954: It is a recognized principle in free societies that the State must help its citizens to make provision for emergencies beyond their control, such as unemployment, sickness requiring expensive medical treatment, and similar emergencies to a greater or lesser degree by means of social security legislation in a variety of forms. 71

72 And this Court, in Roman Catholic Archbishop of Manila vs. SSS (L-15045, 1 SCRA 10 [1961]), declared that "the Social Security Law was enacted pursuant to the 'policy of the Republic to develop, establish gradually and perfect a social security system which shall be suitable to the needs of the people throughout the Philippines and provide protection to employees against the hazards of disability, sickness, old age and death' (Sec. 2, Republic Act No. 1161, as amended). Such enactment is a legitimate exercise of the police power. It affords protection to labor, especially to working women and minors, and is in full accord with the constitutional provisions on the 'promotion of social justice to insure the well being and economic security of all the people. It is interesting to note that aforesaid pronouncement of this Court was incorporated in the Social Security Act (R.A. 1161) by Presidential Decree No. 24 issued on October 19, 1972. Thus, as amended by said Decree, its section 2 now reads: "It is the policy of the Republic of the Philippines to establish, develop, promote and perfect a sound viable 'tax exempt social security service suitable to the needs of the people throughout the Philippines, which shall provide to covered employees and their families protection against the hazards of disability, sickness, old age, and death, with a view to promoting their well-being in the spirit of social justice" (emphasis supplied). And one of its whereases expressly states that "the measure is necessary to effect reforms in SSS operations and to revitalize its structure as an important agency in the promotion of the social and economic development programs of the Government; ... (emphasis supplied). Considering therefore that the establishment and maintenance of an adequate social security and social services, which the Social Security System seeks to perform and achieve are functions pursuant to the basic constitutional mandate directing the State to promote "social justice to insure the well-being and economic security of all the people" (1935 Constitution) or "to insure the dignity, welfare and security of all the people" as well as the police power of the State, the inescapable conclusion is that the function of the SSS is and has always been governmental. It thus becomes clear that petitioner Social Security System, under the obtaining facts and applicable laws in the case, is not liable for the damages caused to private respondents by the tortious acts of its officers and employees to whom the task done properly pertained. A contrary rule as that enunciated in the majority opinion invites conspiracy between officials and employees of the Social Security System and private parties to create financial liabilities against the System. Its funds are public funds and more importantly trust funds, which must be protected.

Separate Opinions

AQUINO, J., concurring: I concur. The award of moral damages is not justified under arts. 2219 and 2220 of the Civil Code. I vote to award the private respondents the additional sum of P2,000 as litigation expenses.

MAKASIAR, J., dissenting: I dissent. I 72

73 To begin with, the negligent acts committed by the officers and employees of the petitioner, Social Security System, amounted to not simply a contractual breach but tort. For the record is clear that petitioner's officers and employees were grossly negligent bordering on malice or bad faith in applying for the extrajudicial foreclosure of the mortgage contract executed in its favor by the spouses David B. Cruz and Socorro Concio-Cruz, and that even after private respondents had brought to the attention of the petitioner's officers and employees their mistake, they insisted on their course of action, instead of making the necessary rectifications, which grossly negligent and oppressive acts caused damage to private respondents. As found by the Court of Appeals: The appellant was not justified in applying for the extrajudicial foreclosure of the mortgage contract executed in its favor by the spouses David B. Cruz and Socorro Concio-Cruz, Exh. 'A'. While it is true that the payments of the monthly installments were previously not regular, it is a fact that as of June 30, 1968 the appellees, David B. Cruz and Socorro Concio-Cruz were up-to-date and current in the payment of their monthly installments. Having accepted the prior late payments of the monthly installments, the appellant could no longer suddenly and without prior notice to the mortgagors apply for the extrajudicial foreclosure of the mortgage in July, 1968. It is obvious that the appellant applied for the extra-judicial foreclosure of the mortgage in question because of the gross negligence of its employees. This negligence was aggravated when the appellant, after being informed of the error, insisted on proceeding with the extra-judicial foreclosure by invoking alleged violations of the mortgage contract. But these violations are either too minor to warrant the drastic step of foreclosure or were deemed condoned when the appellant accepted late payments prior to June 30, 1968. Hence the trial court did not err in concluding that 'the act of defendant indeed was deliberate, calculated to cow plaintiffs into submission and made obviously with malice (p. 54, rec.; emphasis supplied). The circumstance that there was a pre-existing contractual relationship between the herein contending parties, does not bar the tort liability of the officers and employees of petitioner; because tort liability may still exist despite presence of contractual relations as the act that breaks the contract may also be a tort, as in this case (Air France vs. Carrascoso, L21438, Sept. 28, 1966, 18 SCRA 155, 168-169; Singson & Castillo vs. Bank of the Philippine Islands, L-24837, June 27, 1968, 23 SCRA 1117, 1119-20). Consequently, a tortious act being involved, the applicable provision of law is Article 2180 in relation to Article 2176 of the New Civil Code. Under Article 2180, ... The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. In the case at bar, the petitioner Social Security System as the instrumentality of the State to implement the social justice guarantee enunciated in the Constitution, did not act through a special agent. Hence, the Social Security System cannot be liable for the damages caused by the tortious acts of its officers and employees while in the performance of their regular functions. The remedy therefore of private respondents is to proceed against the guilty officers and employees of petitioner Social Security System as mandated by Article 2176 of the New Civil Code. For as held in the leading case of Merritt vs. Government of the Philippine Islands (34 Phil. 311). The responsibility of the State is limited by Article 1903 to the case wherein it acts through a special agent, ... so that in representation of the state and being bound to act as an agent thereof, he executes the trust confided to him. This concept does not apply to any executive agent who is an employee of the active administration and who on his own responsibility performs the functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations. 73

74 While Article 2180 of the New Civil Code was not invoked by the petitioner as a defense, this does not prevent this Tribunal from taking cognizance of the same. For as stressed in Ortigas, Jr. vs. Lufthansa German Airlines (June 30, 1975, 64 SCRA 610, 633), failure to assign a defense as an error on appeal is a pure technicality that should not prevail over the substantial issues in a controversy as the same would not serve the interest of justice, and "this Court is clothed with ample authority to review matters even if they are not assigned as errors in the appeal, if it finds that our consideration is necessary in arriving at a just decision of the case" (citing Saura & Export Co., Inc., May 31, 1963, 8 SCRA 143). Further, We have, time and again, re-stated the rule that the Supreme Court can suspend its own rules to serve the ends of justice (Jose vs. C.A., et al., L-38581, March 31, 1976; Phil. Blooming Mills Employees Organization, et al. vs. PBM Co., et al., L-31195, 51 SCRA 189, 215; Ronquillo vs. Marasigan, May 31, 1962, 5 SCRA 304, 312-313; Ordoveza vs. Raymundo, 63 Phil. 275). The principle that a defense not expressly pleaded is deemed waived unless such failure is satisfactorily explained, is merely a general rule which is subject to exceptions, among which is when the Court can take judicial notice of such defense. In this case, We can take judicial notice of the law, like Article 2180 of the New Civil Code. It must be emphasized that the courts have as much duty as the Commission on August to protect the public treasury from being mulcted or raided illegally. And this becomes more imperative considering that a substantial portion of the funds of the petitioner comes from the contributions of- employees and workers in private firms and is therefore in the nature of a trust fund to be expended only for their welfare and benefit, with the government merely giving some subsidy. Any amount of damages illegally assessed against the Social Security System will deplete the benefit funds available to its covered members for the contingencies of sickness, disability, retirement or death. It cannot likewise be seriously questioned that the Social Security System is comprehended in the definition in Section 2 of the Revised Administrative Code of the term "Government of the Republic of the Philippines ... which refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippine Islands, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the central Government or to the provincial or municipal branches or other forms of local government." And the second paragraph of said Section 2 provides that the term "national government" refers to the central government as distinguished from the different forms of local government. There is nothing therein nor in the Social Security Act, as amended, intimating that the national government does not include the Social Security System. It is true that the Social Security System has a corporate or juridical personality of its own. But this does not remove it as an integral part of the national or central government. For such corporate or juridical personality invested in it is more for facility and convenience in the attainment of the objectives for which it was created by the legislative. Such vesting of corporate or juridical personality in the Social Security System was never intended to destroy the shield from liability afforded it as an integral part of the State or Government by Article 2180 of the New Civil Code. Relatedly, such corporate or juridical personality of the Social Security System and the express provision of the law creating the same that it can sue and be sued, have the effect of merely waiving its immunity from suit as an entity performing governmental functions. Such waiver of its immunity from suit is not an admission of its liability. Such waiver merely allows a private citizen a remedy for the enforcement and protection of his rights, but always subject to the lawful defenses of the Social Security System one of which is Article 2180 of the New Civil Code as aforestated. In other words, such waiver of immunity from suit is not equivalent to instant liability. The Social Security System can only be held liable for damages arising from the tortious acts of its officers and employees only if it acts through a special agent, which is not true in the case at bar. II

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75 It must be finally stressed that the Social Security System cannot be liable for damages because it is an entity of government performing governmental functions; hence, not profit-oriented. The 1963 doctrine in SSSEA vs. Soriano (7 SCRA 1016 [1963]) that the system is exercising proprietary functions, is no longer controlling. For in 1969, the distinction between constituent and ministrant functions of the Government as laid down in the case of Bacani vs. Nacoco (100 Phil. 468 [1956]) has been obliterated. In the case of Agricultural Credit and Cooperative Financing Administration (ACCFA) vs. Confederation of Unions in Government Corporations and Offices (CUGCO) [30 SCRA 649 (1969)], this Court in re-examining the aforesaid Bacani ruling observed that the trend has been to abandon and reject the traditional "Constituent- Ministrant" criterion in governmental functions in favor of the more responsive postulate that the growing complexities of modern society have rendered the traditional classification of government functions unrealistic and obsolete. WE held in the ACCFA case, thus: The growing complexities of modern society, however, have rendered this traditional classification of the functions of government quite unrealistic, not to say obsolete. The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only 'because it was better equipped to administer for the public welfare than is any private individual or groups of individuals,' continue to lose their well-defined boundaries and to be absorbed within activities that the government must have undertaken in its sovereign capacity if it is to meet the increasing social challenges of the times. Here as almost everywhere, else, the tendency is undoubtedly towards a greater socialization of economic forces. Here of course, this development was envisioned indeed adopted as a national policy, by the Constitution itself in its declaration of principle concerning the promotion of social justice. Chief Justice Fernando, then Associate Justice, in his concurring opinion stressed that: The decision reached by this Court so ably given expression in the opinion of Justice Makalintal, characterized with vigor, clarity and precision, represents what for me is a clear tendency not to be necessarily bound by our previous pronouncements on what activities partake of a nature that is governmental. Of even greater significance, there is a definite rejection of the 'constituent-ministrant' criterion of governmental functions, followed in Bacani vs. National Coconut Corporation. That indeed is cause for gratification. For me at least, there is again full adherence to the basic philosophy of the Constitution as to the extensive and vast power lodged in our government to cope with the social and economic problems that even now sorely beset us. There is therefore full concurrence on my part to the opinion of the court, distinguished by its high quality of juristic craftsmanship (pp. 666-667). xxx xxx xxx 4. With the decision reached by us today, the government is freed from the compulsion exerted by the Bacani doctrine of the 'constituent-ministrant' test as a criterion for the type of activity in which it may engage. It constricting effect is consigned to oblivion. No doubts or misgivings need assail us that government efforts to promote the public wealth whether through regulatory legislation of vast scope and emplitude or through the undertaking of business activities, would have to face a searching and rigorous scrutiny. It is clear that their legitimacy cannot be challenged on the ground alone of their being offensive to the implications of the laissez- faire concept. Unless there be a repugnancy then to the limitations expressly set forth in the Constitution to protect individual rights, the government enjoys a much wider latitude of action as to the means it chooses to cope with grave social and economic problems that urgently press for solution. For me, at least, that is to manifest deference to the 75

76 philosophy of our fundamental law. Hence my full concurrence, as announced at the outset. (pp- 682683, emphasis supplied). The 1935 Constitution declared: Sec. 5. The promotion of social justice to insure the well being and economic security of all the people should be the concern of the State. (Art. II, Declaration of Principles). The present 1973 Constitution provides under its Declaration of Principles and State Policies (Article 11), that The State shall promote social justice to ensure the dignity, welfare, and security of all the people. Towards this end, the State shall regulate the acquisition, ownership, use, enjoyment, and disposition of private property, and equitably diffuse property ownership and profits. (Section 6); and The State shall establish, maintain, and ensure adequate social services in the field of education, health, housing, employment, welfare, and social security to guarantee the enjoyment by the people of a decent standard of living. (Section 7). The strictly governmental function of the SSS is spelled out unmistakably in Section 2 of R.A. No. 1161 entitled "The Social Security Act of 1954," thus: It is hereby declared to be the policy of the Republic of the Philippines to develop, establish gradually and perfect a social security system which shall be suitable to the needs of the people throughout the Philippines, and shall provide protection against the hazards of disability, sickness, old age and death. As stated in the Explanatory Note to the Bill that became R. A. No. 1161, the Social Security Act of 1954: It is a recognized principle in free societies that the State must help its citizens to make provision for emergencies beyond their control, such as unemployment, sickness requiring expensive medical treatment, and similar emergencies to a greater or lesser degree by means of social security legislation in a variety of forms. And this Court, in Roman Catholic Archbishop of Manila vs. SSS (L-15045, 1 SCRA 10 [1961]), declared that "the Social Security Law was enacted pursuant to the 'policy of the Republic to develop, establish gradually and perfect a social security system which shall be suitable to the needs of the people throughout the Philippines and provide protection to employees against the hazards of disability, sickness, old age and death' (Sec. 2, Republic Act No. 1161, as amended). Such enactment is a legitimate exercise of the police power. It affords protection to labor, especially to working women and minors, and is in full accord with the constitutional provisions on the 'promotion of social justice to insure the well being and economic security of all the people. It is interesting to note that aforesaid pronouncement of this Court was incorporated in the Social Security Act (R.A. 1161) by Presidential Decree No. 24 issued on October 19, 1972. Thus, as amended by said Decree, its section 2 now reads: "It is the policy of the Republic of the Philippines to establish, develop, promote and perfect a sound viable 'tax exempt social security service suitable to the needs of the people throughout the Philippines, which shall provide to covered employees and their families protection against the hazards of disability, sickness, old age, and death, with a view to promoting their well-being in the spirit of social justice" (emphasis supplied). And one of its whereases expressly 76

77 states that "the measure is necessary to effect reforms in SSS operations and to revitalize its structure as an important agency in the promotion of the social and economic development programs of the Government; ... (emphasis supplied). Considering therefore that the establishment and maintenance of an adequate social security and social services, which the Social Security System seeks to perform and achieve are functions pursuant to the basic constitutional mandate directing the State to promote "social justice to insure the well-being and economic security of all the people" (1935 Constitution) or "to insure the dignity, welfare and security of all the people" as well as the police power of the State, the inescapable conclusion is that the function of the SSS is and has always been governmental. It thus becomes clear that petitioner Social Security System, under the obtaining facts and applicable laws in the case, is not liable for the damages caused to private respondents by the tortious acts of its officers and employees to whom the task done properly pertained. A contrary rule as that enunciated in the majority opinion invites conspiracy between officials and employees of the Social Security System and private parties to create financial liabilities against the System. Its funds are public funds and more importantly trust funds, which must be protected. Footnotes 1 Penned by Justice Ramon C. Fernandez and concurred in by Justices Efren I. Plana and Venicio Escolin. 2 pp. 3-7, Petitioner's Brief. 3 pp. 2-5, Respondents' Brief. 4 pp, 70-71, Record on Appeal. 5 p. 74, Record on Appeal, p. 62 Rollo. 6 pp. 73-74, Record on Appeal. 7 p. 59, Rollo. 8 pp. A-B, Brief for the Petitioner, p. 136, Rollo. 9 Talosig vs. Vda. de Nieva, 43 SCRA 473; Evangelists & Co. vs. Abad Santos, 51 SCRA 416; Tiongco vs. De la Merced, 58 SCRA 90; Perido vs. Perido, 63 SCRA 98; Alaras vs. Court of Appeals, 64 SCRA 671; T.J. Wolff & Co., Inc. vs. Moralde, 81 SCRA 624. 10 p. 54, Rollo. 11 pp.72-73; Record on Appeal. 12 SSS Employees' Association (PAFLU) vs. Soriano, 7 SCRA 1016(1963). 13 SSS Employees' Association vs. Soriano, 9 SCRA 511 (1963). 14 Sec. 4 (k) RA 1161; Sec. 4 (k) PD 24. 77

78 15 Sinco, Philippine Political Law, Revised Ed., p. 34. 16 See Noda vs. Social Security System, 109 SCRA 218 (1981). 17 9 SCRA 511 (1963). 18 NASSCO vs. Court of Industrial Relations, 8 SCRA 781 (1963); PNB vs. Pabalan, 83 SCRA 595 (1978). 19 T.s.n., August 20, 1969, pp. 91-101. 20 T.s.n., Ibid., 101; p. 20, Brief for defendant-appellant, Court of Appeals. 21 p.2 Resolution, p. 59, Rollo. 22 Malonzo vs. Galang, 109 Phil.16 (1960); Enervida vs. de la Torre, 55 SCRA 339 (1974). 23 Art. 2234, Civil Code. 24 Art. 2232, Ibid. 25 Art. 2221, Ibid 26 Art. 2208, Ibid. ** Justices Efren I. Plana and Venicio Escolin took part in the Decision under review. *** Justice Hugo E. Gutierrez, -Jr., then Acting Solicitor General, filed the Brief for petitioner.

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Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-52179 April 8, 1991 MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner vs. HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIA, IAUREANO BANIA, JR., SOR MARIETA BANIA, MONTANO BANIA, ORJA BANIA, AND LYDIA R. BANIA, respondents. 78

79 Mauro C. Cabading, Jr. for petitioner. Simeon G. Hipol for private respondent.

MEDIALDEA, J.:p This is a petition for certiorari with prayer for the issuance of a writ of preliminary mandatory injunction seeking the nullification or modification of the proceedings and the orders issued by the respondent Judge Romeo N. Firme, in his capacity as the presiding judge of the Court of First Instance of La Union, Second Judicial District, Branch IV, Bauang, La Union in Civil Case No. 107-BG, entitled "Juana Rimando Bania, et al. vs. Macario Nieveras, et al." dated November 4, 1975; July 13, 1976; August 23,1976; February 23, 1977; March 16, 1977; July 26, 1979; September 7, 1979; November 7, 1979 and December 3, 1979 and the decision dated October 10, 1979 ordering defendants Municipality of San Fernando, La Union and Alfredo Bislig to pay, jointly and severally, the plaintiffs for funeral expenses, actual damages consisting of the loss of earning capacity of the deceased, attorney's fees and costs of suit and dismissing the complaint against the Estate of Macario Nieveras and Bernardo Balagot. The antecedent facts are as follows: Petitioner Municipality of San Fernando, La Union is a municipal corporation existing under and in accordance with the laws of the Republic of the Philippines. Respondent Honorable Judge Romeo N. Firme is impleaded in his official capacity as the presiding judge of the Court of First Instance of La Union, Branch IV, Bauang, La Union. While private respondents Juana Rimando-Bania, Laureano Bania, Jr., Sor Marietta Bania, Montano Bania, Orja Bania and Lydia R. Bania are heirs of the deceased Laureano Bania Sr. and plaintiffs in Civil Case No. 107-Bg before the aforesaid court. At about 7 o'clock in the morning of December 16, 1965, a collision occurred involving a passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a gravel and sand truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump truck of the Municipality of San Fernando, La Union and driven by Alfredo Bislig. Due to the impact, several passengers of the jeepney including Laureano Bania Sr. died as a result of the injuries they sustained and four (4) others suffered varying degrees of physical injuries. On December 11, 1966, the private respondents instituted a compliant for damages against the Estate of Macario Nieveras and Bernardo Balagot, owner and driver, respectively, of the passenger jeepney, which was docketed Civil Case No. 2183 in the Court of First Instance of La Union, Branch I, San Fernando, La Union. However, the aforesaid defendants filed a Third Party Complaint against the petitioner and the driver of a dump truck of petitioner. Thereafter, the case was subsequently transferred to Branch IV, presided over by respondent judge and was subsequently docketed as Civil Case No. 107-Bg. By virtue of a court order dated May 7, 1975, the private respondents amended the complaint wherein the petitioner and its regular employee, Alfredo Bislig were impleaded for the first time as defendants. Petitioner filed its answer and raised affirmative defenses such as lack of cause of action, non-suability of the State, prescription of cause of action and the negligence of the owner and driver of the passenger jeepney as the proximate cause of the collision. In the course of the proceedings, the respondent judge issued the following questioned orders, to wit: (1) Order dated November 4, 1975 dismissing the cross-claim against Bernardo Balagot;

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80 (2) Order dated July 13, 1976 admitting the Amended Answer of the Municipality of San Fernando, La Union and Bislig and setting the hearing on the affirmative defenses only with respect to the supposed lack of jurisdiction; (3) Order dated August 23, 1976 deferring there resolution of the grounds for the Motion to Dismiss until the trial; (4) Order dated February 23, 1977 denying the motion for reconsideration of the order of July 13, 1976 filed by the Municipality and Bislig for having been filed out of time; (5) Order dated March 16, 1977 reiterating the denial of the motion for reconsideration of the order of July 13, 1976; (6) Order dated July 26, 1979 declaring the case deemed submitted for decision it appearing that parties have not yet submitted their respective memoranda despite the court's direction; and (7) Order dated September 7, 1979 denying the petitioner's motion for reconsideration and/or order to recall prosecution witnesses for cross examination. On October 10, 1979 the trial court rendered a decision, the dispositive portion is hereunder quoted as follows: IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby rendered for the plaintiffs, and defendants Municipality of San Fernando, La Union and Alfredo Bislig are ordered to pay jointly and severally, plaintiffs Juana Rimando-Bania, Mrs. Priscilla B. Surell, Laureano Bania Jr., Sor Marietta Bania, Mrs. Fe B. Soriano, Montano Bania, Orja Bania and Lydia B. Bania the sums of P1,500.00 as funeral expenses and P24,744.24 as the lost expected earnings of the late Laureano Bania Sr., P30,000.00 as moral damages, and P2,500.00 as attorney's fees. Costs against said defendants. The Complaint is dismissed as to defendants Estate of Macario Nieveras and Bernardo Balagot. SO ORDERED. (Rollo, p. 30) Petitioner filed a motion for reconsideration and for a new trial without prejudice to another motion which was then pending. However, respondent judge issued another order dated November 7, 1979 denying the motion for reconsideration of the order of September 7, 1979 for having been filed out of time. Finally, the respondent judge issued an order dated December 3, 1979 providing that if defendants municipality and Bislig further wish to pursue the matter disposed of in the order of July 26, 1979, such should be elevated to a higher court in accordance with the Rules of Court. Hence, this petition. Petitioner maintains that the respondent judge committed grave abuse of discretion amounting to excess of jurisdiction in issuing the aforesaid orders and in rendering a decision. Furthermore, petitioner asserts that while appeal of the decision maybe available, the same is not the speedy and adequate remedy in the ordinary course of law. On the other hand, private respondents controvert the position of the petitioner and allege that the petition is devoid of merit, utterly lacking the good faith which is indispensable in a petition for certiorari and prohibition. (Rollo, p. 42.) In addition, the private respondents stress that petitioner has not considered that every court, including respondent court, has the inherent power to amend and control its process and orders so as to make them conformable to law and justice. (Rollo, p. 43.) 80

81 The controversy boils down to the main issue of whether or not the respondent court committed grave abuse of discretion when it deferred and failed to resolve the defense of non-suability of the State amounting to lack of jurisdiction in a motion to dismiss. In the case at bar, the respondent judge deferred the resolution of the defense of non-suability of the State amounting to lack of jurisdiction until trial. However, said respondent judge failed to resolve such defense, proceeded with the trial and thereafter rendered a decision against the municipality and its driver. The respondent judge did not commit grave abuse of discretion when in the exercise of its judgment it arbitrarily failed to resolve the vital issue of non-suability of the State in the guise of the municipality. However, said judge acted in excess of his jurisdiction when in his decision dated October 10, 1979 he held the municipality liable for the quasi-delict committed by its regular employee. The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of the Constitution, to wit: "the State may not be sued without its consent." Stated in simple parlance, the general rule is that the State may not be sued except when it gives consent to be sued. Consent takes the form of express or implied consent. Express consent may be embodied in a general law or a special law. The standing consent of the State to be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A special law may be passed to enable a person to sue the government for an alleged quasi-delict, as in Merritt v. Government of the Philippine Islands (34 Phil 311). (see United States of America v. Guinto, G.R. No. 76607, February 26, 1990, 182 SCRA 644, 654.) Consent is implied when the government enters into business contracts, thereby descending to the level of the other contracting party, and also when the State files a complaint, thus opening itself to a counterclaim. (Ibid) Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provided that they can sue and be sued. (Cruz, Philippine Political Law, 1987 Edition, p. 39) A distinction should first be made between suability and liability. "Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable." (United States of America vs. Guinto, supra, p. 659-660) Anent the issue of whether or not the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on whether or not the driver, acting in behalf of the municipality, is performing governmental or proprietary functions. As emphasized in the case of Torio vs. Fontanilla (G. R. No. L-29993, October 23, 1978. 85 SCRA 599, 606), the distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its agents which result in an injury to third persons. Another statement of the test is given in City of Kokomo vs. Loy, decided by the Supreme Court of Indiana in 1916, thus: Municipal corporations exist in a dual capacity, and their functions are twofold. In one they exercise the right springing from sovereignty, and while in the performance of the duties pertaining thereto, their 81

82 acts are political and governmental. Their officers and agents in such capacity, though elected or appointed by them, are nevertheless public functionaries performing a public service, and as such they are officers, agents, and servants of the state. In the other capacity the municipalities exercise a private, proprietary or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the performance of such functions act in behalf of the municipalities in their corporate or individual capacity, and not for the state or sovereign power." (112 N.E., 994-995) (Ibid, pp. 605-606.) It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that the defendant was not acting in its governmental capacity when the injury was committed or that the case comes under the exceptions recognized by law. Failing this, the claimant cannot recover. (Cruz, supra, p. 44.) In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way to the Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal streets." (Rollo, p. 29.) In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to his office. We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District Engineer, and the Provincial Treasurer (102 Phil 1186) that "the construction or maintenance of roads in which the truck and the driver worked at the time of the accident are admittedly governmental activities." After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that the municipality cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of governmental functions. Hence, the death of the passenger tragic and deplorable though it may be imposed on the municipality no duty to pay monetary compensation. All premises considered, the Court is convinced that the respondent judge's dereliction in failing to resolve the issue of non-suability did not amount to grave abuse of discretion. But said judge exceeded his jurisdiction when it ruled on the issue of liability. ACCORDINGLY, the petition is GRANTED and the decision of the respondent court is hereby modified, absolving the petitioner municipality of any liability in favor of private respondents. SO ORDERED. Narvasa, Cruz, Gancayco and Grio-Aquino, JJ., concur.

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