THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. SERVILLANO Us.

JARUMAYAN and PEDRO TAURO, defendants and appellants.

1995-08-30 | G.R. No. 13200-R

[NO. 13200-R. August 30, 1955]

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. SERVILLANO Us. JARUMAYAN and
PEDRO TAURO, defendants and appellants.

CRIMINAL LAW; JUDGMENT; PENALTY; SUBSIDIARY IMPRISCNMENT, NOT AN ACCESSORY

PENALTY; SUBSIDIARY IMPRISONMENT CANNOT BE SERVED UNLESS INCLUDED IN THE
JUDGMENT.-Subsidiary imprisonment is not an accessory penalty. Rather, it is a personal penalty prescribed
by law in substitution of the pecuniary liability when the latter cannot be satisfied because of the culprits
insolvency. Article 39, Revised Penal Code. But, subsidiary imprisonment cannot be served unless the
judgment condemns the accused to suffer the same in case of inability to pay the fine imposed upon him.
Article 78, Revised Penal Code; People vs. Fajardo, 65 Phil., 539, 541-542. The judgment, therefore, should
include the imposition of subsidiary imprisonment.

APPEAL from a judgment of the Court of First Instance of Laguna. Yatco, J.

The facts are stated in the Opinion of the Court. Amado G. Salazar for defendants and appellants. First
Assistant Solicitor General Guillermo E. Torres and Solicitor Jose P. Alejandrino for plaintiff and appellee.

SANCHEZ, J.:

The information is for bribery. Defendants are Servillano Us. Jarumayan, Chief of Police, and Pedro Tauro,
municipal policeman, both of Calamba, Laguna. The decision below found defendants guilty of the crime
charged and sentenced them to imprisonment for an indeterminate period ranging from 2 months and 1 day
of arresto mayor, as minimum, to 1 year, 8 months and 21 days of prision correccional, as maximum, to pay a
fine of P40, with the accessories of the law, and each to pay one-half of the costs.

Defendants appealed.

Sofronio Gecolea, cochero and a resident of barrio San Juan, Calamba, Laguna, was the owner of a
carromata and a male horse. In View of the death of, his grandmother, he asked one Florentino Malaca, a
youth of seventeen years, to drive the rig for him. That was on the afternoon of May 11, 1952. At about 7:00
oclock in the evening of that day, two men boarded the said rig in the poblacion and asked Florentino Malaca
to drive them to barrio Mabolo of the same municipality. Upon arriving at the barrio just mentioned, one of the
passengers thrust a knife at the back of Florentino and told him to alight from the rig, Florentino was
thereafter relieved of his earnings in the amount of P2. Meanwhile, the other passenger unloosened the horse.
Florentino was then ordered to climb an elevated place and lie on the ground face down. Thereafter, the two
passengers fled with the horse, leaving Florentino and the rig. Florentino hastened to the poblacion and
reported the matter to the police authorities at the municipal building. Sofronio Gecolea was there summoned.
Gecolea, together with Florentino Malaca and four policemen repaired to the place of the robbery. They
recovered the rig which was impounded in the municipal building. The next morning, May 12, 1952, that rig
was turned over to Gecolea.

Around noonday of May 15, 1952, Sofronio Gecolea was called by appellant Servillano Us. Jarumayan, Chief
of Police, to the municipal building. J arumayan asked Gecolea if the latter wanted to recover his horse. The
answer was in the affirmative. Jarumayan then told Gecolea, If you want to recover your horse, you must
take along with you P20. Gecolea told appellant J arumayan that he would take up the matter with his parents.
Gecolea got "P20 from his mother. He returned to the municipal building. With him was his uncle, Feliciano
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De Lina, 58, farmer, and a resident of barrio San Jose, Calamba. They saw Jarumayan in a jeep in front of
the municipal building. There, appellant Jarumayan instructed Gecolea and De Lina to proceed to the
crossing to look for a certain policeman who would accompany them to the place where the horse could be
located and to give that policeman the sum of P20. Just as Gecolea and De Lina were proceeding on-a
carretela to the road intersection, they met Flourentino Malaca near the church. Malaca joined the party. At
the Crossing, they met appellant policeman, Pedro Tauro, who took them to bariro Mayapa, Calamba, Laguna,
where they alighted. Tauro led them to a place where the horse was tied, to a madre de cacao tree. On sight
of the horse, appellant Tauro asked his companions if that was the horse they were looking for Gecolea
answered that it was Forthwith, Gecolea untied the horse. Gecolea turned over the P20 to his uncle Feliciano
and asked him to negotiate the payment. Then the party returned to the crossing. Here, Tauro went down and
asked De Lina whether they had an understanding with the Chief of Police. De Lina gave an affirmative
answer and asked appellant Tauro, To whom shall I deliver the P20? Tauros answer was, To me. De Lina
forthwith delivered the P20 to Tauro. Afterwards, Gecolea and his companions went home leaving Tauro in
the place.

It is undisputed that the horse of complainant Gecolea was the subject of robbery. There is no quarrel too as
to the fact that appellant Jarumayan learned of this fact on the evening of the same day of the robbery, May
11, 1952.

Appellants have a different theory regarding the delivery of the P20, and it is this:

Early one morning of May, 1952, Ladislao Narvaez, overseer of Marcelino Batista, apprehended a horse in
his cornfield. located in barrio Batino, Calamba, Laguna. He reported the matter to appellant Chief of Police
and informed the latter that almost two-thirds of his corn plants valued at not less than P30 had been
destroyed. Appellant Chief of Police inquired for the description, of the horse and discovered that it tallied with
the missing animal. He instructed Narvaez to keep the horse in his place and wait until the afternoon, and
informed him that he would send for the owner of the animal that has been stolen in barrio Mayapa. He further
told Narvaez that if by the afternoon no one arrived, he was to bring the animal to the municipal building.
Appellant Jarumayan called for Carmen Cardozo, mother of Sofronio Gecolea. She was informed by the Chief
of the damage caused on the cornfield of Narvaez, and asked to prepare some money, as he would instruct a
policeman to accompany her representative to Batino and to use his good offices to reduce the amount of
indemnity. On the afternoon, Sofronio Gecolea and Florentino Malaca met appellant Jarumayan near the
municipal building. He told Gecolea to follow his jeep to the crossing. There, he called up appellant,
policeman Pedro Tauro, and instructed him to accompany the two to Batino. Before they reached a certain
creek on the way,

They met Ladislao Narvaez and saw the horse tied to a tree. They were informed by Narvaez that the latter
was already on his way to the municipal building. Narvaez wanted P30 for the damage allegedly caused by
the horse and invited Gecolea to examine the cornfield; but the latter declined as he was afraid that they
might be overtaken by darkness. Thereafter, the sum of P20, the only amount which Gocolea had, was
accepted by and delivered to Narvaez.

1. Appellants counsel, .is his brief and in the course of his oral argument before this Court, vehemently
challenged the credibility of the Peoples witnesses, Feliciano De Lina and Sofronio Gecolea, and pointed to
the contradictions committed by them. While it is true that-contradictions were in fact apparent, they are on
minor matters brought about by lengthy cross-examination upon two barrio folks, one a farmer and another a
cochero, which in the opinion of this Court did not affect their credibility. People vs. Limbo, 49 Phil., 94,
99-100. One thing, however, is certain. In all essential facts, the two witnesses remained a steadfast and
unshaken. And these facts are:

That in the afternoon of May 15, 1952, De Lina and Gecolea met Jarumayan; that after having been informed
that Gecolea was ready with P20, said appellant instructed them to proceed to the road crossing of Calamba
and look for a policeman who would lead them to the place where the horse was; that at said crossing, they
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met appellant, policeman Pedro Tauro; that said policeman led them to barrio Mayapa Calamba, where the
horse was found; and that the amount of P20 was given by Feliciano De Lina to appellant Tauro.

Appellants claim that there is not any single material contradiction, or any single material inconsistency in
the testimony of the witnesses for the defense, rather than strengthen appellants position, leaves the
impression that said testimony was seemingly woven out of the same fabric and pattern of strange and
suspicious similitudes. Their lines seem to have been well rehearsed.

It is strange that to retrieve a P200-horse, Gecolea should have paid the amount of P20 without investigating
the damage done by said horse. There is no reason why appellant Jarumayan should not have instructed
Narvaez to take right away to the municipal building a horse which he very well knew has been the subject of
a robbery. The fact that no damage was ever caused Narvaezs cornfield at all, may be inferred from the
testimony of said Narvaez to the effect that notwithstanding his version that one-half of the corn crop allegedly
destroyed belonged to Marcelino Batista, the landowner, he never reported the destruction to him and he
never even shared with him that P20 allegedly received for such destruction.

The question before us is one of fact. His Honor, Judge Nicasio Yatco, after a close observation of the
witnesses for the prosecution as well as for the defense, declared that the accused committed it (the crime)
and the evidence supports the information on this score. He also stated that the explanation offered by the
defense is rather shaky and unreliable to merit credence. The familiar rule is that the conclusions of the court
below should be respected in the absence of a fact or circumstance the importance of which has been
overlooked or misinterpreted by the trial judge. At this distance, we find no reason potent enough to compel
us to deviate from the conclusion reached by the court below.

2. Appellants last assignment of error draws our attention to the delay in the filing of this criminal case. The
crime was committed on May 15, 1952. Appellants were only denounced to the Philippine Constabulary on
October 1, 1952, after the lapse of more than four months. This fact, so appellants aver, casts a most serious
suspicion on the good faith of complainant.

We do not see eye to eye with appellants on this point. Gecolea is a mere barrio rig driver. Appellants are
peace officers. It is not to be expected that Gecolea could easily have had the nerve to go against a Chief of
Police and a policemen of the same municipality where he plies his trade. Really, were it not for the fact that
Calamba was placed under Constabulary control and for the information received by Gecolea that a certain
Maligaya had already denounced to the Constabulary the nefarious activities of appellant Jarumayan, the
offended party would not have reported this matter to the Constabulary. And this, in spite of the mounting
discontent of the town people who claimed to have been victims of robbery and bribery. Indeed, the lower
court took judicial notice of the fact that it was only after the Constabulary took a hand in the peace and order
condition of Calamba that several actions of this kind were filed by the Provincial Fiscal of Laguna against the
persons responsible therefor.

3. We observe that the decision appealed from does not provide for subsidiary imprisonment is the event of
inability of-appellants to pay the fine of P40 set forth in the decision. Said decision, however, provides for the
accessories of the law.

One problem is to determine whether or not subsidiary imprisonment is included in the term accessories of
the law. To start with, we have Article 73 of the Revised Penal Code which provides that Whenever the
courts shall impose a penalty which, by provision of law, carries with it other penalties, according to the
provisions of Articles 40, 41, 42, 43, 44, and 45 of this Code, it must be understood that the accessory
penalties are also imposed upon the convict. Subsidiary imprisonment, however, is not an accessory penalty.
Rather, it is a personal penalty prescribed by law in substitution of the precuniary liability when the latter
cannot be satisfied because of the culprits insolvency. Article 39, Revised Penal Code. But, subsidiary
imprisonment cannot be served unless the judgment condemns the accused to suffer the same in case of
inability to pay the fine imposed upon him. Article 78, Revised Penal Code; People vs. Fajardo, 65 Phil., 539,
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541-542. The judgment, therefore, should include the imposition of subsidiary imprisonment.

Wherefore, with the modification that appellants are hereby ordered to suffer subsidiary imprisonment in case
of insolvency to pay the fine of 40, the decision appealed from is hereby affirmed in all other respects, with
costs against appellants.

It is so ordered.

Endencia, Pres. J., and Ocampo, J., Concur.

Judgment modified.

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