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[G.R. No. 12957. October 29, 1918. ]

THE UNITED STATES, Plaintiff-Appellee, v. PONCIANO NAMIT, Defendant-Appellant.

Ramon Maza, for Appellant.

Acting Attorney-General Paredes, for Appellee.



attack is sudden and unexpected to the person assaulted does not constitute the element of alevosia
necessary to raise homicide to murder, where it does not appear that the aggressor adopted such mode of
attack to facilitate the perpetration of the homicide without risk to himself.


attachment which was available under the Spanish system of criminal procedure was abrogated upon the
adoption of General Orders No. 58, and was not perpetuated by the reservation contained in section 107 of
this law.

3. ATTACHMENT, CIVIL LIABILITY INCIDENT TO CRIME. — In the prosecution of a person accused of murder
the heirs of the person slain intervened immediately before the judgment of condemnation was entered and
obtained from the court an order for the attachment of the property of the accused on the ground that he
was fraudulently disposing of his property to evade the civil liability to which he would be subject in case of
conviction. Held: That the attachment could not be sustained, either under article 589 of the Spanish Law of
Criminal Procedure or under sections 424 and 412 of the Code of Civil Procedure.



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 of 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 duty as a guard of 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 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 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 witnesses apparently evince 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 a stick. He says that he 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 of the trial court was, we think, fully justified in finding, as he did, that the
accused is the person who caused the death of Damiano Jordan.

Although the complaint charges alevosia (treachery) 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 witnesses testify that the blow was given after Damiano Jordan had
turned his back to the accused; but the blow was struck, 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 righthandedness prevails among the great majority, it is to
be presumed, in the absence of 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 struck Ponciano Namit exclaimed "I have long desired to strike some one and I have done so." ("Yo
desde antes tenia ganas de pegar a alguien, y he pegado.") This would seem 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.

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 sentenced 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 matter 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: jgc:c hanrobles. com.ph

"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 the
probable amount of the pecuniary liabilities."
cra law virt ua1aw lib ra ry

We are of the opinion that this provision 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 word
"privilege," as here used, cannot be understood as referring 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 states 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 sections 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 to the initiation of the
proceedings. The evidence taken in the "sumario" was, therefore, capable of 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 attachment 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 characteristic 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 the 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 of the same Code, the affidavit
was in several respects defective. Disregarding these informalities, however, we are of the opinion that the
remedy of attachment there provided is not available as an aid 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, declares that the procedure in all civil actions shall be in accordance with the provisions of
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 liability can be made the subject of recovery in a criminal 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 it results 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, but 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 substituting 14 years 8 months and 1 day, reclusion temporal, with the 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.

Torres, Johnson, Avanceña and Fisher, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting: chan rob1es v irt ual 1aw l ibra ry

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 Orders No. 58. I do not agree with the proposition that 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
the 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 v. Bernardo ([1911], 19 Phil., 265): jgc:chan roble s.com. ph

"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 or misdemeanor is also civilly
liable (art. 17, Penal Code), unless the aggrieved party should expressly waive his right (art. 23)."

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 civil judgment.
Any other hypothesis would permit 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.