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CRIM CASES

27.People v. Oanis 74 Phil 257


G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.

"Information received escaped convict Anselmo Balagtas with bailarina and Irene in
Cabanatuan get him dead or alive. Major Guido
Tecson was sleeping in his room with his back towards the door, Oanis and Galanta, fired at him
simultaneously or successively, believing him to be Anselmo Balagtas but without having made
previously any reasonable inquiry as to his identity.
Whether or not they may, upon such fact, be held responsible for the death thus caused to
Tecson.
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).
The case was different from Ah Chong, because it was committed without fault. Thus, this is not
a mistake of fact.
The crime committed by appellants is not merely criminal negligence, the killing being intentional
and not accidental.
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.
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.
They are 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.
CRIM CASE NO. 29

Republic of the Philippines


SUPREME COURT
Manila

EN BANC
[G.R. No. 10678. August 17, 1915. ]
THE UNITED STATES, Plaintiff-Appellee,
v. MANUEL BAUTISTA, Defendant-Appellant.
Mauricio Ilagan for Appellant.
Attorney-General Avancea for Appellee.

Resistance to agents of the authorities; resisting arrest.


One who resists an arrest, without knowing that the person or persons who are attempting to make the
arrest are vested with authority, but who submits to the arrest immediately upon being informed that such
persons have a right to make the arrest, is not guilty of the crime of resistance to the agents of the
authorities.

This defendant was charged with the crime of assault upon agents of the authorities and insulting them. Upon said
complaint the defendant was arrested, arraigned, tried, found guilty, and sentenced by the Honorable Vicente
Nepomuceno to be imprisoned for a period of four years two months and one day of prision correccional, with the
accessory penalties of article 61 of the Penal Code, to pay a fine of P300, and in case of insolvency to suffer
subsidiary imprisonment, in accordance with the provisions of the law, and to pay the costs. From that sentence the
defendant appealed to this court.
The record shows that sometime in the month of November, 1914, an order of arrest was issued for the defendant
and placed in the hands of the chief of police of the municipality of Gerona. On or about the 15th of November, the
chief of police, accompanied by another policeman, went to the house where the defendant was staying for the
purpose of making the arrest.
Upon being informed that he was in the house, the policeman who accompanied the chief of police entered the
house without permission and attempted to arrest the defendant without explaining to him the cause or nature of his
presence there.
The defendant, according to the declaration of the chief of police, resisted the arrest, calling to his neighbors for
assistance, using the following language: "Come here; there are some bandits here and they are abusing me."
The policeman, who accompanied the chief, in his declaration said that when he attempted to arrest the defendant,
the defendant said to him: "Why do you enter my house, you shameless brigands?" and called to one Basilio, saying:
"There are some bandits here!"
Said policeman further testified that immediately after he had notified the defendant that he was a policeman and
had an order of arrest, the defendant submitted to the arrest without further resistance or objection.
The whole record shows that the resistance given by the defendant was done under the belief that the persons who
had entered his house were tulisanes. The record also shows, by the declaration of the witnesses for the prosecution,
that as soon as he had been informed that they were officers of the law, armed with an order of arrest, he peaceably
submitted and accompanied them.

The appellant alleges that the evidence adduced during the trial of the cause was not sufficient to show that he was
guilty of the crime charged in the complaint.
We do not believe that the law contemplates the punishment of persons for resistance of the authorities under
circumstances such as those which are disclosed in the present case. If the defendant believed that those who had
entered his house were, in fact, tulisanes, he was entirely justified in calling his neighbors and in making an attempt
to expel them from his premises.

After a careful examination of the evidence, we are of the opinion that the record does not disclose sufficient facts
to justify the sentence imposed by the lower court. The defendant is not guilty of the crime described in the
complaint. The sentence of the lower court is therefore hereby revoked, the complaint is hereby ordered dismissed,
and the defendant is discharged from the custody of the law. So ordered.

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


SALCEDO, VANESA D. No. 26

TITLE: People v. Beronilla

CITATION:

THE PEOPLE OF THE PHILIPPINES vs. MANUEL BERONILLA, et al.


96 Phil 566
G.R. No. L-4445
February 28, 1955

NATURE OF THE ACTION: Appeal to the Supreme Court

FACTS:

Arsenio Borjal was the elected mayor of La Paz, Abra and continued to serve as Mayor during the Japanese
occupation.
On December 18, 1944, appellant Manuel Beronilla was appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold,
regimental commander of the 15th Infantry, Philippine Army, operating as a guerrilla unit in the province of Abra.
Simultaneously with his appointment as Military Mayor, Beronilla received copy of a memorandum issued by Lt.
Col. Arnold to all Military Mayors in Northern Luzon, authorizing them "to appoint a jury of 12 bolomen to try
persons accused of treason, espionage, or the aiding and abetting of the enemy".
He also received from the Headquarters of the 15th Infantry a list of all puppet government officials of the
province of Abra (which included Arsenio Borjal, puppet mayor of La Paz), with a memorandum instructing all
Military Mayors to investigate said persons and gather against them complaints from people of the municipality
for collaboration with the enemy.
Upon the return of Borjal who left La Paz because of an attempt on his life, Beronilla placed Borjal under custody.
Pursuant to the instructions, complaints were gathered, a 12-man jury was appointed, prosecutors and a clerk of
the jury were assigned.
The trial lasted for 19 days and the jury found Borjal guilty on all cases (espionage, aiding the enemy, abuse of
authority). Death penalty was then imposed upon him.
Beronilla forwarded the records of the case to the Headquarters of the 15th Infantry for review.
Lt. Col. Arnold returned the records adding that this is a matter best handled by the La Paz government and
whatever disposition they make of the case is hereby approved.
Upon receipt of the letter, Beronilla then ordered the execution of Borjal.
The execution was reported to Col. Arnold and Beronilla received compliments based on the reply of his superior.
Two years thereafter, those who were involved were indicted in the Court of First Instance of Abra for murder,
for allegedly conspiring and confederating in the execution of Arsenio Borjal.
The defendants were convicted, thus this appeal.

ISSUE:

Whether or not the murder done by the accused-appellants are covered by justifying circumstances pursuant to paragraph
6 of Article 11, Any person who acts in obedience to an order issued by a superior for some lawful purpose.

RULING:

YES. The accused-appellants acted in pursuance to the instructions of their superior for some lawful purpose, therefore,
their actions are justified.
RATIO DECIDENDI:

The records are ample to sustain the claim of the defense that the arrest, prosecution and trial of the late Arsenio
Borjal were done pursuant to express orders of the 15th Infantry Headquarters.
It could not be established that Beronilla received the radiogram from Colonel Volckmann, overall area
commander, which called the attention to the illegality of Borjals conviction and sentence. Had Beronilla known
the violation, he would not have dared to report it to Arnold.
The conduct of the appellants does not dispose that they were impelled by malice (dolo).
It appearing that the charge is the heinous crime of murder, and that the accused-appellants acted upon orders,
of superior officers that they, as military subordinates, could not question, and obeyed in good faith, without
being aware of their illegality, without any fault or negligence on their part, the court cannot say that criminal
intent has been established. Actus non facit reum nisi mens si rea.
SALCEDO, VANESA D. No. 5

TITLE: Marcos and Concordia v. Chief of Staff, AFP

CITATION:

FERDINAND E. MARCOS and MANUEL CONCORDIA vs. CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, ET AL.
89 Phil 246
G.R. No. L-4663
May 30, 1951

NATURE OF THE ACTION: Action of Mandamus

FACTS:

It was alleged that the respondents Military Tribunals excluded unlawfully the petitioners from the enjoyment of
their right to appear as counsel for the accused prosecuted before said tribunals
Petitioners contended that they are entitled because they are attorneys duly admitted to practice law in the
Philippine Courts, on the ground that they are disqualified or inhibited by section 17, Article 17 of the Constitution
to appear as counsel for said defendants.

ISSUE:

Whether or not the prohibition contained in the section 17 of our Constitution is applicable to the petitioners.

RULING:

YES. Section 17 of our Constitution is applicable to the petitioners.

RATIO DECIDENDI:

The words "any court" includes the General Court-Martial, and a court-martial case is a criminal case within the
meaning of the above quoted provisions of our Constitution.
The fact that a judgment of conviction, not of acquittal, rendered by a court-martial must be approved by the
reviewing authority before it can be executed (Article of War 46), does not change or affect the character of a
court-martial as a court.
A court-martial is a court, and the prosecution of an accused before it is a criminal and not an administrative case,
and therefore it would be, under certain conditions, a bar to another prosecution of the defendant for the same
offense, because the latter would place the accused in double jeopardy.
The intention or purpose of the framers of our Constitution in enacting section 17, Article VI of the Philippine
Constitution is taken into consideration that there exists the reason of prohibiting the appearance of members of
the Senate and the House of Representatives as counsel for the accused in a court-martial, as for inhibiting them
to appear as such in civil courts, because the independence of civil court's judges is guaranteed by our
Constitution. Ubi eadem ibi eadem lex.
Criminal Law Case #2

People v. Santiago

43 Phil 120

G.R. No. 17584 , March 8, 1922

Nature of action: An Appeal from an Order of the Court of First Instance

Facts:

The accused, Gregorio Santiago was driving an automobile at the rate of 30 miles an hour on a highway 6 meter wide, notwithstanding
the fact that he had to pass a narrow space between a wagon standing on one side of the road and a heap of stones on the other side where there
were two young boys, the appellant did not take the precaution required by the circumstances by slowing his machine, and did not proceed with
the vigilant care that under the circumstances an ordinary prudent man would take in order to avoid possible accidents that might occur, as
unfortunately did occur, as his automobile ran over the boy Porfirio Parondo who was instantly killed as the result of the accident.

Having caused the death of Porfirio Parondo, a boy 7 years old, the herein appellant was prosecuted for the crime of homicide by reckless
negligence and was sentenced to suffer one year and one day of prision correccional, and to pay the costs of the trial.

Not agreeable with that sentence he now comes to this court alleging that the court below committed four errors, to wit:

1. The trial court erred in not taking judicial notice of the fact that the appellant was being prosecuted in conformity with Act No. 2886 of
the Philippine Legislature and that the Act is unconstitutional and gave no jurisdiction in this case.

2. The lower court erred in not dismissing the complaint after the presentation of the evidence in the case, if not before, for the reason
that said Act No. 2886 is unconstitutional and the proceedings had in the case under the provisions of the Act constitute a prosecution
of appellant without due process of law.

3. The court a quo erred in not finding that it lacked jurisdiction over the person of the accused and over the subject- matter of the
complaint.

4. The trial court erred in finding the appellant guilty of the crime charged and in sentencing him to one year and one day of prison
correccional and to the payment of costs.

Issue: Whether or not Act No. 2886, under which the complaint in the present case was filed, is valid and constitutional
that will result for the accused to be acquitted.

Ruling: Yes. The Supreme Court hold that the provisions of sections 2 of General Orders No. 58, as amended by Act No.
2886, do not partake of the same character as the provisions of a constitution; that the said Act No. 2886 is valid and is
not violative of any constitutional provisions and that the court a quo did not commit any of the errors assigned. The
sentence appealed from is hereby affirmed, the appellant being furthermore sentenced to the accessory penalties
prescribed in article 61 of the Penal Code, and to indemnify the heirs of the deceased in the sum of P1,000 and to the
payment of the costs of both instances.

Ratio Decidendi: Since the provisions of this General Order have the character of statutory law, the power of the Legislature
to amend it is self-evident, even if the question is considered only on principle. Our present Legislature, which has enacted
Act No. 2886, the subject of our inquiry, is the legal successor to the Military Government as a legislative body. The
important reason disclosed by the following fact that the Congress has tacitly approved Act No. 2886. And presuming, as
legally we must, that the provisions of these laws have been complied with, it is undisputed that the Congress of the
United States did not annul any of those acts and all of which were amendatory of General Orders No. 58. The silence of
Congress regarding those laws amendatory of the said General Order must be considered as an act of approval.
Crim case no. 01

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

THE UNITED STATES vs.CARSON TAYLOR

G.R. No. L-9726

December 8, 1914

-A complaint was filed against Carson Taylor that on September 25, 1913, the alleged was acting as editor, proprietor, manager, printer and published
of the Manila Daily Bulletin.

-Defendant allegedly did then and there willfully, unlawfully, feloniously, maliciously and with intent to impeach the honesty, virtue, and reputation
of Ramon Sotelo by spreading fake and malicious news which circulated September 25, 1913 therefore was accused for criminal libel

-In the newspaper, it stated that there was a conspiracy to defraud the insurance company. That the building was only fired to collect insurance for
the house and for the said contents and the case no. 10191 was brought and tried in court.

-Upon said complaint, defendant was arrested, arraigned, plead not guilty, was tried and was then found guilty of the crime charged and was asked
to pay a fine of P200,

-defendant appealed and pointed out the assignment of error

1. The court erred in finding that the defendant was responsible for and guilty of the alleged libel
2. The court erred in finding that the defendant was the proprietor and publisher of the Manila Daily Bulletin
3. The court erred in finding that the alleged libelous articles were libelous per se
4. The court erred in holding that the article was libelous, while finding that there was no malice
5. The court erred in finding that the alleged article referred to attorney Ramon Sotelo
6. The court erred in finding that Ramon Sotelo was attorney for the plaintiffs in case no. 10191 when the alleged libel was published

-Act No. 277 defines the crime of libel and prescribes the necessary conditions to constitute it. That every author, editor, or proprietor of any book
or newspaper, or serial publication is chargeable as if he were the author of the same

Ruling:

However, there being no proof that the defendant was indeed the author, editor or proprietor of the newspaper in question, the sentence of lower
court was reversed. The complaint dismissed and defendant was discharged, with costs de officio.
Crim case no. 28

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

THE PEOPLE OF THE PHILIPPINE ISLANDS vs. GONA (Mansaca)


G.R. No. L-32066
March 5, 1903

-In the evening of October 26, 1928 at the municipal district of Pantukan, Province of Davao, Philippine Islands; a number of Mansacas celebrated a
reunion in the house of Mansaca Gabriel

-There was a liberal supply of alcoholic drinks and the men who were at the gathering became intoxicated. That being said, a quarrel between
Mansaca Dunca and defendant Gona took place.

- Dunca left early with his son and were followed by Madapul and one Award.

-The defendant Gona left at the same time with intention of assaulting Dunca, but in the darkne4ss of the evening mistook Mapudul for Dunca and
inflicted on him a mortal wound with a bolo

-There is no doubt that Gona was guilty of the crime charged however, his attorney said that he intended to assault Dunca and not Mapudul and
should be charged under paragraph 1 article 568 of the Penal code for being guilty of homicide through negligence and not of intentional homicide

-Gona made a mistake (error in personae) in killing one man instead of another, in no way is it considered as a relief from his criminal act because
he acted maliciously and willfully.

Ruling:

Gona is found guilty and sentenced to 12 years and one of reclusion temporal with accessory penalties prosecuted by law to indemnity
the heirs in the sum of P1,000.
Criminal Law Case #4

Ruffy v. Chief of Staff


75 Phil 875
G.R. No. L-533 August 20, 1946

Nature of action: Petition for Certiorari


Facts:
According to a memorandum of the Chief of Staff, 6th Military District, dated January 1943, and signed by L.R. Relunia, Lieut. Col., CE,
Chief of Staff, Jose L. Garcia and Dominador Adeva were appointed 3d lieutenants, infantry as of December 31, 1942. Garcia later was promoted
to the rank of captain, effective March 15, 1943, as per Special Orders No. 82, issued in the field, 6th Military District, and dated August 28, 1943.
On May 24, 1943, Jose L. Garcia took his oath before Captain Esteban P. Beloncio, then Acting Commanding Officer, 3d Battalion, 66th Infantry
Regiment, 61st Division, 6th Military District.

As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be Commanding Officer of the Bolo Combat Team in
Mindoro and to undertake other missions of Military character. Pursuant to instructions, Colonel Jurado on November 2, 1943, assigned Major
Ruffy as Commanding Officer of the Bolo Area with 3d Lieut. Dominador Adeva and 2d Lieut. Prudente M. Francisco as members of his staff and
Victoriano Dinglasan as Finance Officer, as per Special Orders No. 99 dated November 2, 1943. In a memorandum of Colonel Jurado for Major
Ruffy bearing date 25 June, 1944, it was stated that Captain Garcia had been given P5,000 for palay and Lieut. Francisco P9,000, P5,000 for palay
and P4,000 for salary of the personnel B. Company.

A change in the command of the Bolo Area was effected by Colonel Jurado on June 8, 1944: Major Ruffy was relieved of his assignment
as Commanding Officer, Bolo Battalion, and Capt. Esteban P. Beloncio was put in Ruffy's place. On October 19, 1944, Lieut. Col. Jurado was slain
allegedly by the petitioners. After the commission of this crime, the petitioners, it is alleged, seceded from the 6th Military District. It was this
murder which gave rise to petitioner's trial, the legality of which is now being contested.

Issue: Whether or not the petitioners were subject to military law by the General Court Martial of the Philippine Army at
the time the offense for which they had been placed on trial was committed and if 93d Article of War is
unconstitutional.

Ruling: Yes. Our conclusion, therefore, is that the petition has no merit and that it should be dismissed with costs. It is so
ordered.

Ratio Decidendi: The attitude of the enemy toward underground movements did not affect the military status of guerrillas
who had been called into the service of the Philippine Army. If the invaders refused to look upon guerrillas, without
distinctions, as legitimate troops, that did not stop the guerillas who had been inducted into the service of the Philippine
Army from being component parts thereof, bound to obey military status of guerrillas was to be judged not by the concept
of the army of the country for which they fought.

As to the constitutionality of the 93d Article of War is assailed. This article ordains "that any person subject to
military law who commits murder in time of was shall suffer death or imprisonment for life, as the court martial may
direct." It is argued that since "no review is provided by that law to be made by the Supreme Court, irrespective of whether
the punishment is for life imprisonment or death", it violates Article VIII, section 2, paragraph 4, of the Constitution of the
Philippines which provides that "the National Assembly may not deprive the Supreme Court of its original jurisdiction over
all criminal cases in which the penalty imposed is death or life imprisonment."

Courts martial are agencies of executive character. Not belonging to the judicial branch of the government, it
follows that courts-martial must pertain to the executive department; and they are in fact simply instrumentalities of the
executive power, provided by Congress for the President as Commander in Chief, to aid him in properly commanding the
army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military
representatives.
CRIM CASE NO. 30

Republic of the Philippines


SUPREME COURT
Manila

EN BANC
[G.R. No. L-24978, March 27, 1926]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FERNANDO DE FERNANDO, defendant-appellant.
W. A. Armstrong for appellant.
Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:

Fernando de Fernando from the judgment of the Court of First Instance of Zamboanga, was held guilty of
the crime of murder and sentenced to suffer the penalty of twenty years cadena temporal, to indemnify
the heirs of the deceased Buenventura Paulino in the sum of P1,000 and to pay the costs, by virtue of a
complaint filed by the fiscal charging with the said crime.

As a basis for his appeal the accused assigns the following errors as committed by the trial court: (1) in
holding that the acts committed by the accused constituted the crime for murder; (2) in not holding that
the accused was exempt from criminal liability and in not acquitting him.
Before the day of the crime several Moro prisoners had escaped from the Penal Colony of San Ramon,
Zamboanga. The residents of the barrio of Municahan of the municipality of Zamboanga were alarmed by
the presence of three suspicious looking persons who were prowling around the place.
The accused Fernando de Fernando who was a municipal policeman, came up the house Remigio Delgado,
and was informed that three unknown and suspicious looking persons, dressed in blue, prowling around
his house
While they were thus talking, at about 7 o'clock at night, there appeared in the dark, at about 4 meters
from the stairs, a person dressed in dark clothes, calling "Nong Miong." At the time the accused nor
Paciencia Delgado knew who was thus calling. The accused inquired what he wanted but instead of
answering he continued advancing with bolo in hand. Upon seeing this Fernando de Fernando took out
his revolver and fired a shot in the air. As he saw that the unknown continued to ascend the staircase he
fired at him. The unknown disappeared and ran to the house of a neighbor Leon Torres, where, after
placing upon a table the bolos that he carried, he fell on the floor and expired.
Remigio Delgado, who was in the kitchen and had recognized the voice of the unknown, asked the
defendant why he had fired at Buenventura Paulino. Fernando de Fernando only said "Let me go, that is
a cross eyed person" and immediately repaired to the house of the teniente of the barrio, Santiago Torres.
The status of the accused on the night in question was that of an agent of the law, to whom notice had
been given of the presence of suspicious looking persons who might be the Moro prisoners who had
escaped from the Penal Colony of San Ramon. The appearance of a man, unknown to him, dressed in
clothes similar in color to the prisoner's uniform who was calling the owner of the house, and the silence
of Paciencia Delgado, who did not at the time recognize the man, undoubtedly caused the accused to
suspect that the unknown man was one of the three persons that the owner of the house said were prowling
around the place. The suspicion become a reality in his mind when he saw that the man continued
ascending the stairs with a bolo in his hand, not heeding his question as to who he was.
In the midst of these circumstances and believing undoubtedly that he was a wrongdoer he tried to perform
his duty and first fired into the air and then at the alleged intruder. But it happened that what to him
appeared to be wrongdoer was the nephew of the owner of the house who was carrying three bolos tied
together. At that psychological moment when the forces of far and the sense of duty were at odds, the
accused was not able to take full account of the true situation and the bundle of bolos seemed to him to be
only one bolo in the hands of a suspicious character who intended to enter the house. There is, however,
a circumstance that should have made him suspect that the man was not only a friend but also a relative
of the owner of the house from the fact he called "Nong Miong," which indicated that the owner of the
house might be an older relative of the one calling, or an intimate friend; and in not asking Paciencia
Delgado who was it was that was calling her father with such familiarity, he did not use the ordinary
precaution that he should have used before taking such fatal action.
Taking into consideration the estate of mind of the accused at the time, and the meaning that he gave to
the attitude of the unknown person, in shooting the latter he felt that he was performing his duty by
defending the owners of the house against an unexpected attack, and such act cannot constitute the crime
of murder, but only that of simple homicide. He cannot be held guilty, however, as principal with
malicious intent, because he though at the time that he was justified in acting as he did, and he is guilty
only because he failed to exercise the ordinary diligence which, under the circumstances, he should have
by investigating whether or not the unknown man was really what he though him to be. In firing the shot,
without first exercising reasonable diligence, he acted with reckless negligence.
In view of the foregoing and reversing the appealed judgment, the accused is held guilty of the crime of
homicide through reckless negligence, and he is sentenced to suffer one year prision correcional, to pay
the amount of P500 to the heirs of the deceased as an indemnity, with subsidiary imprisonment in case of
insolvency, the costs and with credit of one-half of the preventive imprisonment already suffered. So
ordered.