Você está na página 1de 5

This is Google's cache of http://www.lawphil.net/judjuris/juri1918/oct1918/gr_l-12957_1918.html.

It is a snapshot of the page


as it appeared on 14 May 2017 11:59:46 GMT.
The current page could have changed in the meantime. Learn more

Full version Text-only version View source


Tip: To quickly find your search term on this page, press Ctrl+F or -F (Mac) and use the find bar.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. L-12957 October 29, 1918

THE UNITED STATES, plaintiffs-appellee,


vs.
PONCIANO NAMIT, defendant-appellant.

Ramon Maza for appellant.


Acting Attorney-General Paredes for appellee.

STREET, J.:

This appeal is brought to this Court to reverse a judgment of the Court of First Instance of the
Province of Antique, adjudging the defendant guilty of the crime of murder and sentencing
him to cadena perpetua, with the accessories provided by law, and requiring him to indemnify
the heirs of the deceased in the sum of P1,000 and to pay the costs.

It appears in evidence that between 6 and 7 o'clock in the evening of February 24, 1917, the
deceased Damiano Jordan, and a neighbor, one Fernando Martinez, were talking with each
other while standing in the street immediately in front of Jordan's house in the municipality o
Sibalom, Province of Antique. While they were so engaged in conversation they were
approached by the accused, Ponciano Namit. The latter was at the time apparently entering
upon a duty as guard for the round in the capacity of substitute for a son whose turn fell upon
this night.

As Ponciano Namit came up he stopped and asked Fernando Martinez if he was on guard that
night. Upon receiving an affirmative reply, he asked Damiano Jordan if he too was on guard,
and Damiano replied that he was not as it was not his turn. Ponciano thereupon at once
ordered Damiano to go up into his house, and as Damiano did not instantly obey, Ponciano in
a few moments repeated the command. Damiano in a few moments repeated the command.
Damiano then replied that he was going and suiting his actions to his words, turned to start
for his house. As he was turning, Ponciano struck him a blow on the left frontal part of the
head with a heavy stick.

The end of this stick was supplied with a hatchet-shaped object, possibly of metal, and the
knob of this instrument crushed into the head of Damiano and penetrating into the brain,
there momentarily remained. Ponciano by giving the stick a jerk succeeded in freeing it and
immediately left the scene of the crime. When he pulled the stick out, Damiano fell to the
ground. Damiano's wife who was sitting in the door of their house only a short distance away,
saw what had happened and immediately ran down to her husband and told Fernando to aid
her in carrying him to the house, which he did. The injured person lived for about six days
and died as a result of the wound. It was shown by an autopsy performed on the body that a
hole was made in the skull about as large as a half of peso coin. No motive sufficient to
account for this unjustifiable attack was proved, though there is a suggestion in the evidence
that Ponciano may have been drinking.

After a careful review of the evidence we see no reason for discrediting the testimony of the
two eyewitnesses for the prosecution. We find no material contradiction in their statements
made either at the trial of this case or at the time of the commission of the crime. The story
told by the wife of the deceased Bonifacia Tubigon, appears to be a simple and truthful
narrative. The same may be said with regard to the testimony of Fernando Martinez. Both
witness apparently evidence a desire to tell what happened without exaggeration or
distortion. Another witness for the prosecution. Aurelio Sildo, testified that on the night in
question the accused admitted that he had the misfortune to strike Damiano Jordan.

At the trial the accused did not directly admit having struck the fatal blow to Damiano; but he
claimed that on the night in question he was passing the place of this occurrence and was
there assaulted by some unknown person with the stick. He says that the and the assailant
struggled for the possession of the stick and that finally he, Ponciano, kicked his adversary,
who fell down, whereupon Ponciano departed. We consider this story unlikely; and the judge
as he did, that the accused is the person who caused the death of Damiano Jordan.

Although the complaint charges alevosia as a qualifying circumstance in the commission of


the crime, thus elevating the offense to the degree of murder, and although the judge of the
trial court found that this element was present in the commission of the offense, we are not
satisfied with his conclusion on this point. It is true the two principal witness testify that the
blow was given after Damiano Jordan had turned his bask to the accused; but the blow was
truck, evidently with great force, upon the left frontal side of the head of Damiano, and it is
manifest that this could have been done only if the accused is a left-handed person, supposing
him to be standing behind his victim. There is no evidence, however, that Ponciano Namit is
left handed; and inasmuch as right handedness prevails among the great majority, it is to be
presumed in the absence of the evidence to the contrary, that the accused is right-handed.

This circumstance raises in our mind a reasonable doubt as to whether the parties may not
have been facing each other when the blow was delivered. If such were the case, it would be
improper to find that the offense was qualified by alevosia. It must be admitted that the attack
was sudden and unexpected to Damiano Jordan, and it would perhaps be possible to found
upon this the conclusion that the attack was characterized by surprise in such sense as to
constitute alevosia. However, in considering a question of this kind, every case must be judged
by its particular facts; and we find nothing in the evidence to show with certainty that the
aggressor consciously adopted a mode of attack intended to facilitate the perpetration of a
homicide without risk to himself. a more reasonable, though still doubtful, inference would
possibly be that he did not in fact intend to kill Damiano at all.

In this connection it is worth while to note that Bonifacia Tubigon declares that immediately
after the blow was truck Ponciano Namit exclaimed I have long desired to strike some one
and I have done so." This would seen to indicate, in the absence of proof of other motive, that
the accused was moved by a sudden desire to use his stick and that he struck in obedience to
this unreasoning impulse, without thinking of the conditions under which he was acting.
Upon the whole we incline to the opinion that the fatal blow was the result of a casual
encounter under conditions not sufficiently defined to enable us to say that alevosia was
certainly present in the case.1awph!l.net

The offense committed is, in our opinion, to be qualified as homicide, under article 404 of the
Penal Code , in the estimation of which no generic circumstance either of an aggravating or
attenuating nature should be taken into consideration; and the proper penalty is reclusion
temporal in its medium degree. The accused should accordingly be sentence to 14 years 8
months and 1 day, reclusion temporal with the accessories prescribed in article 59 of the Penal
Code.

Another feature of the case of some importance is presented in connection with an


attachment levied upon the property of the accused to secure the satisfaction of the civil
liability incident to the commission of the homicide. It appears that while the cause was
pending in the Court of First Instance an attorney appeared in the capacity of private
prosecutor, representing the widow of the deceased, and presented an affidavit showing that
the accused was selling his property in order to elude the payment of any indemnity to which
he would be liable in case of conviction. It was accordingly requested that an attachment
should be issued against his property. an order was thereupon made by the court upon April
25, 1917, authorizing an attachment of property to the value of P1,500 unless he should give
bond to answer in that amount. The clerk of the court issued the order of attachment upon the
same date, and three days later the court rendered its decision finding the accused guilty and
ordering him to indemnify the widow and children of the deceased in the sum of P1,000. The
attachment was not immediately levied; but after an appeal had been taken, the sheriff, on
November 28, 1917, levied the same upon five parcels of land and a house belonging to the
accused. It does not appear from the record in this case whether the accused has ever given
the bond necessary to procure the dissolution of this attachment, although upon December 19,
1917, after the cause had been brought to this Court by appeal, an order was here entered
authorizing the Court of First Instance to act in the latter of dissolving the attachment, if bond
should be given.

It is argued that the attachment granted in this case is sustainable under article 589 of the Law
of Criminal Procedure of Spain, which is to the following effect:

ART 589. When from the record of a cause appear circumstances tending to establish the
guilt of a person, the judge shall require him to give a bond sufficient to secure the
pecuniary liabilities which may be finally adjudged, ordering in the same decree the
attachment of sufficient property to cover such liabilities, should he fail to give bond.

The amount of the bond shall be fixed in the same decree and it shall not be less than
one third of provable amount of the pecuniary liabilities.

We are of the opinion that this provisions and those related to it in the Spanish Code of
Criminal Procedure were abrogated by necessary implication upon the enactment of General
Orders No. 58. It is true that section 107 of this law recognizes the existence of the civil liability
connected with the commission of crime and reserves the privileges previously secured by
law to the person injured by the commission of an offense to take part in the prosecution and
to recover damages. Nevertheless, we think that the commission of an offense to the
procedure contained in the Spanish Code of Criminal Procedure relating to the attachment of
property and giving of bond.

Upon reading the entire section 107 of General Orders No. 58, it appears obvious that the right
which was intended to be saved by the reservation therein made was the right of the party
injured to appear and to be heard in all stages of the case with reference to such liability and
to obtain a judgment for the damages occasioned by the wrongful act, as well as the further
right to appeal from any decision of the court denying any legal right connected therewith.

It is to be noted that while the "sumario" of Spanish criminal procedure is in many respects
similar to the preliminary hearing before a committing magistrate conducted pursuant to
section 13 and 14 of General Orders No. 58, there is nevertheless an important difference,
which is that the "sumario" constitutes a preliminary stage in the criminal prosecution, and is
not merely a step preparatory tot he initiation of the proceedings. The evidence taken in the
"sumario" therefore, capable for being used in the plenary stage of the prosecution and if
ratification was not required, served as the basis of judgment. (Ley de 18 de junio de 1870
Law of June 18, 1870.) On the contrary, the proceedings in the preliminary hearing never
constitute a basis for a subsequent judicial declaration of guilt. The "sumario" has been
abrogated by the enactment of General Orders No. 58 above referred to; and the ground
expressed in article 589 of the Spanish Code of Criminal Procedure for the attachments of the
property of the accused therefore no longer here exists.

With the adoption of General Orders No. 58, there was necessarily introduced into these
Islands a system of criminal procedure embodying the principles recognized in the system of
criminal procedure generally in vogue in the United States; and any characteristics or rule of
the former system inconsistent with these principles must be held to have been abrogated.
Attachment in American law is a purely statutory remedy. It does not exist unless expressly
given by statute and as it is an extraordinary and summary remedy, it is unavailable except in
those cases where the statute expressly permits its issuance.

It remains to consider whether or not the attachment can be sustained under the provisions of
section 424, in connection with subsection 5 of section 412 of Code of Civil Procedure. The
affidavit made in this case states substantially, we think, that the accused was selling his
property with the intent to defraud the persons interested in the enforcement of the civil
liability but considered as an application for an attachment under the provisions above cited,
in connection with section 426 for the same Code, the affidavit was several respect defective.
Disregarding these informalities, however, we are of the opinion that the remedy of
attachment there provided is not available as an aide to the enforcement of the civil liability
incident to prosecution for crime. These provisions contemplate the pendency of a civil action,
and the remedy of attachment is merely an auxiliary to such action. Section 795 of the Code of
Civil Procedure in its first paragraph declared that the procedure in all civil actions shall be in
accordance with the provisions of the said Code and it is quite evident that the legislature in
adopting this Code could not have intended to make its provisions in any respect applicable to
the proceedings in a criminal prosecution. The mere circumstance that a civil prosecution is
in our opinion no sufficient reason for holding that the remedy of attachment as designated
for use in a civil action is available in the criminal proceeding.

From what has been said result that the attachment effected under the order of the Court of
First Instance dated April 25, 1917. must be considered to have been improvidently granted.
The same is hereby declared to be of no effect, by this declaration will of course in no wise
prejudice the right of the widow and children of the deceased to enforce the payment of the
indemnity for which judgment was rendered against the accused. The judgment of the trial
court in respect to the penalty imposed upon the accused, is modified by subsisting 14 years 8
months and 1 day, reclusion temporal, with accessories prescribed in article 59 of the Penal
Code for so much thereof as imposes the penalty of cadena perpetua, with the accessories
prescribed in article 54 of the same Code. As thus modified the judgment of the lower court is
affirmed, with costs against the appellant. So ordered.

Separate Opinions

MALCOLM, J., dissenting:

I agree with the main decision in its discussion of the facts and its qualification of the crime. I
agree again that article 589 of the law of Criminal Procedure of Spain was necessarily
abrogated upon the promulgation of General Order No. 58. I do not agree with the proposition
that the attachment cannot be levied upon the property of the accused to secure the
satisfaction of the civil liability incident to the commission of the homicide. In my judgment
such action is both legal and proper.

The law of the Philippine Islands is made up of certain parts which we call statutes or codes.
Yet this law is, if we interpret it understandingly, a harmonious and symmetrical system. To
give unity to the whole, it is essential to visualize the law in its entirety and not as isolated
segments. Even as to the codes, none is sufficient unto itself. For convenience each code is
given a title which it treats of fully, but never completely. Each code necessarily must and
should blend into every other code. To borrow a phrase of statutory construction, codes are in
a sense in pari materia. For one to enumerate examples would be to demonstrate obvious.

There is no doubt as to the civil liability of a person for his criminal acts. To follow the
doctrine laid down by Justice Torres in the United States

Every crime or misdemeanor gives rise to a penal or criminal action for the punishment
of the guilty party, and also to a civil action for the restitution of the thing, repair of the
damage, and indemnification for the losses; wherefore, after the prosecution of the
criminal action, it shall be understood that the civil action has been utilized, for the
reason that every person criminally liable for a crime of misdemeanor is also civilly
liable (art. 17, Penal Code), unless the aggrieved party should expressly waive his right
(art. 23). (Syllabus.)

When therefore, in a criminal action the courts are permitted to give judgment for a civil
indemnity, they necessarily must have the power to make this remedy effective. This can only
be done by going to the Code of Civil Procedure, which contains the appropriate provisions
governing the subject of attachment. It would seem to be self-evident that the property of the
accused should be kept intact to satisfy the accused to dispose of his property in order to
escape the fulfillment of the entire judgment and to defeat the purposes of the law.

With the exception above noted, the judgment is correct.

The Lawphil Project - Arellano Law Foundation

Você também pode gostar