EN BANC
[G.R. No. 9527. August 23, 1915. ]
THE UNITED STATES, Plaintiff-Appellee, v. JOSE TAMPARONG ET
AL., Defendants-Appellants.
The appellants in their own behalf.
Acting Attorney-General Harvey for Appellee.
SYLLABUS
1. JUSTICES OF THE PEACE; APPEALS IN THIRD INSTANCE; EXTENT OF
REVIEW. — Under the Spanish criminal procedure, appeals from justices’
courts were allowed only to Courts of First Instance. By section 43 of
General Orders No. 58, this procedure has been so amended that appeals
can be taken to the Supreme Court in such cases when the validity or
constitutionality of a statute is involved. This amendment of the
procedure does not carry with it the right of review of the facts, but is
confined to the purpose stated — that is, of determining the validity or
constitutionality of the statute or ordinance upon which the judgment was
predicated. Former cases reviewed, showing that such has uniformly been
the interpretation of section 43 by this court.
DECISION
TRENT, J. :
The defendants were convicted by the justice of the peace of Baguio for
having played the game of chance called "monte" in violation of Ordinance
No. 35. They appealed to the Court of First Instance, where they were again
tried and convicted upon the same charge. An appeal was allowed to this
court because the validity of Ordinance No, 35 was drawn in question
during the trial of the cause in the court below.
Two questions are raised by this appeal: (1) Is Ordinance No. 35 valid, and
(2) is this court required under the law to examine the evidence for the
purpose of determining the guilt or innocence of the defendants?
The first question is answered in the affirmative by this court in the case
of the United States v. Joson (26 Phil. Rep., 1). The cases are on all fours,
and a further discussion of this branch of the case is unnecessary.
With reference to the second question, it is said that by reason of the
defendants’ having in the lower court questioned the legality of Ordinance
No. 35, for the violation of which they have been convicted, this case has
been brought to us in all its details of law and fact, including the evidence
taken at the trial, on which the Court of First Instance founded its judgment
touching the guilt and condemning the defendants. While, on the other
hand, it is contended that the questions of fact, which we are [not]
authorized to examine, are those which are essential to be examined for the
purpose of determining the legality of Ordinance No. 35 and the penalties
provided for therein, and no other.
At the outset it may be well to briefly outline the criminal procedure in
force in this jurisdiction prior to the promulgation on the 23d day of April,
1900, of General Orders No. 58.
The royal order dated December 17, 1886, directing the execution of the
royal decree of September 4, 1884, wherein it was ordered that the Penal
Code in force in the Peninsula, as amended in accordance with the
recommendations of the code committee, be published and applied in the
Philippine Islands, as well as the Provisional Law of Criminal Procedure
which accompanied it. These two laws, having been published in the
Official Gazette of Manila on March 13 and 14, 1887, became effective four
months thereafter.
According to the provisions of Rule 1 of the above-mentioned provisional
law, the justices of the peace, or gobernadorcillos, had original jurisdiction
over the offenses set forth in Book 3 of the Penal Code.
Rule 2 provided that "when the justice of the peace or the gobernadorcillo
receives notice that there has been committed any one of the offenses
provided for in Book 3 of the Penal Code which can be prosecuted by the
Government, he shall issue summons for an oral trial to the complainant, if
any, to the alleged culprit, and to the witnesses who may be able to testify
as to the facts, fixing the day and hour for holding the trial. If this (the trial)
takes place at the residence of the promotor fiscal, he shall also be
summoned." Rule 3 provided that the same procedure should be followed
in those cases which can only be prosecuted at the instance of a private
party, except that the promotor fiscal was not cited.
Neither the Provisional Law, the criminal procedural laws of the Peninsula,
nor the autos acordados prescribed any special form for the complaint to
be presented to the justice of the peace or the gobernadorcillo. As to this
point, it seems that the Compilation of the Laws of Criminal Procedure of
1879 was applicable. Articles 405, 406, and 412 read: "ART. 405. The
complaint made in writing must be signed by the complainant, and if he
cannot do so, by some other person at his request. The authority or official
who receives it shall rubricate and seal every page in the presence of the
person who presents it, which also he may do himself or through another
person at his request.
"ART. 406. When the complaint is oral, it shall be reduced to writing by the
authority or official who receives it, wherein, in the form of a declaration,
shall be set forth such information as the complainant may have regarding
the act complained of and the circumstances thereof, and both shall sign it
at the bottom. If the complainant cannot sign his name, some other person
shall do so at his request."cralaw virtua1aw library
"ART. 412. Criminal cases that are not instituted by the Government must
begin with a complaint."cralaw virtua1aw library
The oral trial referred to in Rule 2 was held within three days next following
the date when the justice of the peace or the gobernadorcillo received
information that the offense had been committed (Rule 4), the procedure
being that provided for in Rule 9, which reads: "The trial shall be public,
beginning with the reading of the complaint, if any there be, followed by
the examination of the witnesses summoned and the introduction of such
other evidence as the complainant, accuser, and public prosecutor, if he
take part, may request and the justice of the peace or the gobernadorcillo
may regard as pertinent. Immediately thereafter the accused shall be given
a hearing, the witnesses who appear in his defense shall be examined, and
such other evidence as the justice or the gobernadorcillo may declare to be
admissible shall be adduced. The parties shall forthwith make such pleas
as they think expedient in support of their respective contentions, the first
to speak being the public prosecutor, if he take part, then the private
complainant, and finally the accused.
"The representative of the public prosecutor shall attend the trial for
misdemeanors, whenever he is cited thereto, in accordance with Rule
2."cralaw virtua1aw library
A record of the trial was made, wherein the whole procedure was clearly
and succinctly set forth, and signed by all the parties participating in the
trial. (Rule 11.)
After trial and rendition of judgment, either of the parties could appeal to
the Court of First Instance within the first day next following that on which
notice of the rendition of judgment was served. The appeal suspended the
judgment. After the appeal had been allowed, the justice of the peace or the
gobernadorcillo remitted to the Court of First Instance the original record
and cited the parties to appear within the period of five days before the
appellate court. This time could be extended, if the circumstances of the
case required. (Rule 14.) If the appellant appealed, a day was fixed for the
trial; but if he did not appear, the appeal was dismissed. (Rule 15.) Rule 16
provides the procedure for the trial in the second instance. This rule reads:
"The hearing at the trial shall be public, and all the proceedings in the case
shall be read therein; then the parties or their attorneys may speak in their
turn, and thereafter the judgment shall be pronounced and communicated
to them.
"A record of the trial shall be drawn up in the same manner as fixed by Rule
11."cralaw virtua1aw library
Rule 17 reads: "In this second instance no evidence may be admitted other
than that which, offered in the first instance, was not taken for reasons
independent of the will of the parties who had offered it."cralaw virtua1aw
library
Rule 19 provides: "The judgment of the Court of First Instance will be
executory, and there will be no recourse from the same except that of
responsibility before the audiencia del territorio."cralaw virtua1aw library
The provisions of General Orders No. 58 pertinent to the question under
consideration, are as follows:jgc:chanrobles.com.ph
"SEC. 43. From all final judgments of the Courts of First Instance or courts
of similar jurisdiction, and in all cases in which the law now provides for
appeals from said courts an appeal may be taken to the Supreme Court as
hereinafter prescribed. Appeals shall also lie from the final judgments of
justices of the peace in criminal cases to the courts of the next superior
grade, and the decisions of the latter thereon shall be final and conclusive
except in cases involving the validity or constitutionality of a statute,
wherein appeal may be made to the Supreme Court."cralaw virtua1aw
library
"SEC. 54. All cases appealed from a justice’s court shall be tried in all
respects anew in the court to which the same are appealed; but on the
hearing of such appeals it shall not be necessary, unless the appeal shall
involve the constitutionality or legality of a statute, that a written record of
the proceedings be kept; but shall be sufficient if the appellate court keeps
a docket of the proceedings in the form prescribed in the next preceding
section."cralaw virtua1aw library
Section 43 has been amended by section 34 of Act No. 1627 so as to read
as follows:jgc:chanrobles.com.ph
"From all final judgments of the Court of First Instance or courts of similar
jurisdiction, and in all cases in which the law now provides for appeals from
said courts, an appeal may be taken to the Supreme Court as hereinafter
prescribed. The convicted party may appeal from any final judgment of a
justice of the peace in a criminal cause to the Court of First Instance by
filing a notice of appeal with such justice within fifteen days after the entry
of judgment. Upon such notice being so filed, the justice shall forward to
the Court of First Instance all original papers and a transcript of all docket
entries in the cause, and the provincial fiscal shall thereupon take charge
of the cause in behalf of the prosecution. The judgment of the Court of First
Instance in such appeals shall be final and conclusive, except in cases
involving the validity or constitutionality of a statute or the
constitutionality of a municipal or township ordinance."cralaw virtua1aw
library
In view of the fact that this court took the view, prior to the passage of Act
No. 1627, that the military governor and the framers of General Orders No.
58 intended by the use of the word "statute" found in section 43 (supra) to
include "ordinances," the amendment of this section by section 34 of that
Act does not affect the issue in the instant case. The original section
provided that "an appeal may be made to the Supreme Court in cases
involving the validity or constitutionality of a statute," and the section, as
amended, authorizes appeals to the Supreme Court in the same class of
cases.
It is urged that as the civil-law term "appeal" is used in section 43 (supra),
we must apply the same rule of construction that the courts in England and
the United States have ,almost uniformly applied to the same term and thus
derive an unqualified review of both the law and the facts. This doubtless
would be a correct position in some jurisdictions in the American Union, as
there the technical civil-law meaning of the term "appeal" is followed. The
reason for so doing is set forth in the case of Nashville Ry. & Light Co. v.
Bunn (168 Fed. Rep., 862), wherein the court said:jgc:chanrobles.com.ph
"The distinction between a ’writ of error,’ which brings up the record in an
action of law for a review of questions of law only, and an ’appeal,’ which
involves a rehearing upon both the facts and the law, is vital. These
remedies have their origin and functions in the inherent difference between
courts of law and courts of equity, differences which are recognized in the
Constitution of the United States and the laws of Congress. The ’writ of
error’ is a common law writ, and searches the record for errors of law in the
final judgment of a common-law court. If error is found, the judgment
awards a venire facias de novo. The ’appeal’ is a procedure which comes to
us from the civil law along with the fundamentals which go to make up the
jurisprudence of a court of equity. Its office is to remove the entire cause,
and it subjects the transcript to a scrutiny of fact and law and is in
substance a new trial."cralaw virtua1aw library
Under the system of procedure which obtains in the Philippine Islands, both
legal and equitable relief is dispensed in the same tribunal. We have no
courts of law and courts of equity as they are known and distinguished in
England and the United States. All cases (law and equity) are presented and
tried in the same manner, including their final disposition in the Supreme
Court. Therefore, the word "appeal," as used in section 43 (supra), does not
necessarily imply the removal of the cause from one tribunal to another in
its entirety, subjecting the facts, as well as the law, to a review or a retrial,
but it is to be interpreted by the ordinary rules of construction.
The intention of the framers of General Orders No. 58 i8 the law. In order
to ascertain that intention the provisions of the order must be construed in
the light of existing law and the circumstances at the time of its
promulgation.
At the time General Orders No. 58 went into effect, criminal cases
originating in Courts of First Instance came to the audiencia in their
entirety, subjecting both the law and the facts to a review or retrial. But the
audiencia, or Philippine Supreme Court, could not review the judgment of
a Court of First Instance in any case tried on appeal from courts of justices
of the peace wherein the latter courts had jurisdiction. Such judgments
were final and conclusive. The aggrieved party could go no further with the
case. The only recourse he had was that mentioned in Rule 19 (supra). The
penalties for violations of the provisions of Book 3 of the Penal Code over
which justices of the peace then had jurisdiction were generally arreto or
arresto menor and small fines. This was the law in force at the time section
43 (supra) was framed and these were the conditions confronting the
framers of that section at that time. What changes did the section make?
Section 43 authorizes appeals to the Supreme Court from all final
judgments of Courts of First Instance "and in all cases in which the law now
provides for appeals from said courts." This part of the section is limited
to judgments rendered in criminal cases originating in Courts of First
Instance. This is necessarily true because the latter part of the section
makes the decisions of the "courts of next superior grade (which were
Courts of First Instance) rendered in cases appealed from justices’ courts
final and conclusive, except in cases involving the validity or
constitutionality of a statute." The result is that the former procedure was
amended by section 43 so as to also authorize appeals to the Supreme Court
in the cases mentioned in the latter part thereof when the validity or
constitutionality of a statute was drawn in question. To this extent only was
the former procedural law changed in so far as, the question at issue is
concerned. Among the reasons which induced the lawmakers to make this
change was the fact that the jurisdiction of justices of the peace was
"extended to all offenses which the Penal Code designates as punishable by
arresto mayor in all of its grades." (Sec. 108.)
If we had found the ordinance attacked in the case at bar to be illegal and
unconstitutional, the judgment appealed from would necessarily have to be
set aside and defendants would have no interest in presenting to us the
evidence taken at the trial. But we have maintained the legality of that
ordinance, and in so doing have we exhausted our powers and reached the
limit of our inquiry? Section 43 does not expressly so limit our power.
Neither does it expressly authorize us to review the testimony touching the
guilt or innocence of the defendants.
The distinction between the illegality of a penalty imposed by a municipal
corporation and the correctness of that imposed by a justice of the peace
under a municipal ordinance, and between the illegality of the ordinance
and that of the proceedings or actions taken under it, is plain and broad.
An ordinance may, from the standpoint of the regularity of all the
proceedings leading up to and inclusive of its enactment, be absolutely
faultless and yet the ultimate act done or enacted may be inherently or
intrinsically illegal or unconstitutional. On the other hand, the latter may
be perfectly unassailable and yet the ordinance be illegal or
unconstitutional by reason of some fact or circumstance connected with its
passage. It may, for instance, have been presented in a wrong manner, at a
wrong time, or not voted for as directed by law. It is to facts of this class or
character that section 43 refers when it says "the latter thereon shall be
final and conclusive except in cases involving the validity or
constitutionality of a statute."cralaw virtua1aw library
Such appears to be the meaning and intention manifested from the
provisions of the latter part of section 43, already quoted, especially when
they are considered in the light of the former practice above indicated.
Under that practice no appeals whatever were allowed to the Supreme Court
from judgments of Courts of First Instance in cases originating in justices’
courts. We must assume that the framers of section 43 had knowledge of
this practice and its effects. The framers desired to amend this practice to
the extent only of providing a way by which statutory questions, which
might arise in these cases, could be reviewed by the Supreme Court. This
object could be very imperfectly obtained, if, when the court assumed
jurisdiction of such a case, it would not only determine the statutory
questions, but also inquire into and determine every other question raised
during the progress of the trial. In effect, this would entirely destroy the
former practice, because it would render it possible to bring every case here
in its entirety. All that would be necessary would be to raise some statutory
question, whether material to the decision of the case or not, and the right
of appeal and reexamination of the whole case would be assured. Clearly,
no such result was intended, nor is it manifest from the language employed
in section 43. But it is urged that our ruling in this matter "involves the legal
absurdity of disjoining a single case and turning over one fragment to one
court and another parcel to another court." (Elliott on Appellate Procedure,
sec. 17.) In this section the author is speaking of appellate jurisdiction
where the distinction between law and equity is rigidly maintained. He says:
"Where a court of equity retains jurisdiction for one purpose, it will retain
it for all purposes." The same author recognizes a difference in the two
systems of appellate jurisdiction — that is, the one where the distinction
between law and equity is maintained and, the other, where the two are
blended. (Section 24.) In this last section the author says: "In some respects
an appeal under the code system may be less comprehensive in its scope
than an appeal under the old system," citing Judge Curtis, wherein he said
that "it is evident that an appeal under the code system does not necessarily
bring up the entire case." In view of the fact that the code system prevails
in the Philippine Islands, blending legal and equitable rights and providing
for one remedial system, our holding in the instant case is not in conflict
with Elliot on Appellate Procedure.
It is also urged that the rule announced in the case of Loeb v. . Columbia
Township Trustees (179 U. S., 472), and followed in the late case of Boise
Artesian Hot and Cold Water Co., Ltd. v. Boise City (230 U. S., 84), is directly
opposed to our holding in the case under consideration. These two cases
went to the Supreme Court of the United States on writs of error directly
from the circuit courts in accordance with the provisions of section 5 of the
Judiciary Act of March 3, 1891. This section provides "that appeals or writs
of error may be taken from the district courts, or from the existing circuit
courts, direct to the Supreme Court in the following cases: . . ." Here
Congress maintains the distinction between "appeals" and "writs of error."
In each case above cited the Supreme Court of the United States held that it
not only had jurisdiction to review the constitutional questions, but also
every other question properly arising. The court then proceeded to review
all legal questions in those cases and not questions of fact, for the reason
that the cases were before the court on writs of error. Even granting that
the Supreme Court has jurisdiction under the Act above mentioned to
review both questions of law and fact in cases appealed to that court, such
holding would not be antagonistic to our views in the instant case for the
reason that our power to review the facts touching the guilt or innocence
of the defendants must be found in section 43 of General Orders No. 58.
Our view is, as above indicated, that the framers of that section did not
intend to confer upon this court that power. And all must admit that the
military governor at the time he promulgated General Orders No. 58 had
the power to limit or restrict the jurisdiction of the Supreme Court to
statutory questions in cases of the character of the one under
consideration.
Our ruling in the case at bar is fully supported by the adjudicated cases of
this Supreme Court.
In the case of Trinidad v. Sweeney (4 Phil. Rep., 531), the court said: "Upon
the facts stated in the complaint the plaintiff is entitled to prosecute an
appeal to this court; but upon such appeal the only question to be
considered will be that of the validity or invalidity of the ordinance. We
cannot review the evidence nor pass upon any other question of law which
may appear in the record."cralaw virtua1aw library
In United States v. Trinidad (7 Phil. Rep., 325), the defendant was convicted
in the municipal court of the city of Manila for violating a municipal
ordinance. He appealed to the Court of First Instance, where he was again
convicted. An appeal was allowed to the Supreme Court on the ground that
the constitutionality or validity of the ordinance was drawn in question. On
appeal the appellant insisted, among other things, that the trial court erred
in deciding the case without first consulting with the two assessors. This
court held the ordinance valid and, after quoting with approval the
language used in the case of Trinidad v. Sweeney (supra), said: "In cases
where the appeal involves the constitutionality or validity of a statute, the
disagreement of the assessors with the judgment of the Court of First
Instance on appeal does not authorize this court to review the evidence,
but its decision shall be confined only to the question of the validity of the
Act or statute in question, as occurs in the present case."cralaw virtua1aw
library
In the case of The United States v. Espiritusanto (23 Phil. Rep., 610), we
examined the facts touching the due enactment of the ordinance. After so
doing, the ordinance was held valid, but the facts touching the guilt or
innocence of the appellant were not gone into.
In United States v. Ten Yu (24 Phil. Rep., 1), the court used this language at
page 12: "While we have discussed at length each of the assignments of
error made by the appellants, nevertheless, the only question, in fact,
presented by the appeal under the law, in the first instance, is whether or
not the ordinance under which the defendants were sentenced is legal.
Having concluded that said ordinance is legal and within the express
powers of the Municipal Board to enact, the appeal must be dismissed, with
costs in this instance against the appellants in equal parts."cralaw
virtua1aw library
In United States v. Abendan (24 Phil. Rep., 165), the court, after quoting the
testimony of a sanitary inspector and after holding the ordinance valid,
said: "The evidence in the case, which is undisputed, is sufficient, in our
judgment, to warrant the order complained of. It does not appear
therefrom, the defendant himself having introduced substantially no proof
in the case, that he was treated differently from other persons in that
locality, or that he was required to do a thing that the others had not been
required to do, or that he had in any way been discriminated against in the
application of this ordinance to the facts of his case, or that its application
was oppressive or unreasonable in this particular instance.
"The judgment appealed from is affirmed, with costs."cralaw virtua1aw
library
Considering this language, together with that used in the opinion wherein
the court said, "The sole question raised on this appeal is that presented by
the claim of the appellant that the ordinance in question is unreasonable
and oppressive," it is clear that the court did not intend to hold that it had
authority to examine into the question of the guilt or innocence of
the Appellant.
In United States v. Co Chee (R. G. No. 8269, not reported) the appellants
were convicted of a violation of Ordinance No. 152 of the city of Manila and,
having drawn in question the validity of that ordinance, an appeal was
allowed to this court. In disposing of this case the court said: "Precisely this
question was presented in the case of the United States v. Ten Yu (24 Phil.
Rep., 1), just decided by this court, in which we held that said Ordinance
No. 152 of the city of Manila was valid and constitutional. That case is on
all fours with the present one, and the judgment of conviction of the Court
of First Instance is hereby affirmed, with costs against the appellants, on
the authority of that case."cralaw virtua1aw library
No attempt was made to examine or pass upon the testimony touching the
guilt or innocence of the appellants.
In United States v. Tiu Un (R. G., No. 7804); United States v. Gaw Kee (R. G.,
No. 7816); United States v. Lim Cui (R. G., No. 7815); United States v. See
Kea (R. G., No. 7828); United States v. Go Tin (R. G., No. 7481); United States
v. Sia Kim (R. G., No. 7716); United States v. Lim Baey (R. G., No. 7915);
United States v. Li Tia (R. G., No. 7826); and United States v. Tam Bak (R. G.,
No. 7814), not reported, the appellants were convicted for a violation of
Municipal Ordinance No. 152 of the city of Manila and, having drawn in
question the validity of that ordinance, appeals were allowed to this court.
This court, upon the authority of the United States v. Ten Yu (supra),
dismissed the appeals and directed the records to be returned to the court FERIA, J.:
below for execution of the sentences.
Upon complaint of Bernardino Malinao, charging the petitioners with having
Other cases might be cited, but we think the above are sufficient to show committed the crime of robbery, Benjamin Dumlao, a policeman of the City
that we have followed in the instant case the uniform holding of this court of Manila, arrested the petitioners on April 2, 1948, and presented a
for more than ten years. In fact, the court has not, since its organization, complaint against them with the fiscal's office of Manila. Until April 7, 1948,
held in any case that it has the power to review the facts touching the guilt when the petition for habeas corpus filed with this Court was heard, the
of an accused person in cases of the character of the one under petitioners were still detained or under arrest, and the city fiscal had not
consideration. yet released or filed against them an information with the proper courts
justice.
Some discussion has arisen in regard to the language we should use in the
final disposition of cases wherein the statute or ordinance has been upheld. This case has not been decided before this time because there was not a
Sometimes we say, "The judgment is affirmed," and at other times we have sufficient number of Justices to form a quorum in Manila, And it had to be
said "the appeal is dismissed," etc. The result is the same and it is of little transferred to the Supreme Court acting in division here in Baguio for
importance which expression we use. But, as the case comes to us on appeal deliberation and decision. We have not until now an official information as
for the purpose of testing the legality of the statute or ordinance upon to the action taken by the office of the city fiscal on the complaint filed by
which the judgment rests and as the judgment cannot be executed without the Dumlao against the petitioners. But whatever night have been the action
the sanction of this court, it is perfectly legal to "affirm" or "reverse" the taken by said office, if there was any, we have to decide this case in order
judgment as the case may be. to lay down a ruling on the question involved herein for the information
and guidance in the future of the officers concerned.
For the foregoing reasons the judgment appealed from is affirmed, with
costs against the defendants. So ordered.
The principal question to be determined in the present case in order to
decide whether or not the petitioners are being illegally restrained of their
Arellano, C.J., Torres, Johnson and Carson, JJ., concur.
liberty, is the following: Is the city fiscal of manila a judicial
authority within the meaning of the provisions of article 125 of the Revised
Separate Opinions
Penal Code?

ARAULLO, J., concurring:chanrob1es virtual 1aw library Article 125 of the Revised Penal Code provides that "the penalties provided
in the next proceeding article shall be imposed upon the public officer or
I agree to the judgment contained in the foregoing, for the reason that this employee who shall detain any person for some legal ground and shall fail
question has already been settled by former decisions of this court. to deliver such person to the proper judicial authorities within the period
of six hours."

G.R. No. L-2128 May 12, 1948 Taking into consideration the history of the provisions of the above quoted
article, the precept of our Constitution guaranteeing individual liberty, and
the provisions of Rules of Court regarding arrest and habeas corpus, we are
MELENCIO SAYO and JOAQUIN MOSTERO, petitioners,
of the opinion that the words "judicial authority", as used in said article,
vs.
mean the courts of justices or judges of said courts vested with judicial
THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL JAIL,
power to order the temporary detention or confinement of a person charged
BOTH OF CITY OF MANILA,respondents.
with having committed a public offense, that is, "the Supreme Court and
such inferior courts as may be established by law". (Section 1, Article VIII
Enrique Q. Jabile for petitioners. of the Constitution.)
Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Nañawa and
D. Guinto Lazaro for respondents.
Article 125 of the Revised Penal Code was substantially taken from article
202 of the old Penal Code formerly in force of these Islands, which
penalized a public officer other than a judicial officer who, without warrant,
"shall arrest a person upon a charge of crime and shall fail to deliver such
person to the judicial authority within twenty four hours after his arrest."
There was no doubt that a judicial authority therein referred to was the
judge of a court of justice empowered by law, after a proper investigation,
to order the temporary commitment or detention of the person arrested;
and not the city fiscals or any other officers, who are not authorized by law
to do so. Because article 204, which complements said section 202, of the
same Code provided that "the penalty of suspension in its minimum and
medium degrees shall be imposed upon the following persons: 1. Any
judicial officer who, within the period prescribed by the provisions of the
law of criminal procedure in force, shall fail to release any prisoner under
arrest or to commit such prisoner formally by written order containing a
statement of the grounds upon which the same is based."
Although the above quoted provision of article 204 of the old Penal Code
has not been incorporated in the Revised Penal Code the import of said
words judicial authority or officer can not be construed as having been
modified by the mere omission of said provision in the Revised Penal Code.
Besides, section 1 (3), Article III, of our Constitution provides that "the right
of the people to be secure in their persons...against unreasonable seizure
shall not be violated, and no warrant [of arrest, detention or confinement]
shall issue but upon probable cause, to be determined by the judge after
the examination under oath or affirmation of the complaint and the witness
he may produce." Under this constitutional precept no person may be
deprived of his liberty, except by warrant of arrest or commitment issued
upon probable cause by a judge after examination of the complainant and
his witness. And the judicial authority to whom the person arrested by a
public officers must be surrendered can not be any other but court or judge
who alone is authorized to issue a warrant of commitment or provisional
detention of the person arrested pending the trial of the case against the
latter. Without such warrant of commitment, the detention of the person
arrested for than six hours would be illegal and in violation of our
Constitution.
Our conclusion is confirmed by section 17, Rule 109 of the Rules of court,
which, referring to the duty of an officer after arrest without warrant,
provides that "a person making arrest for legal ground shall, without
unnecessary delay, and within the time prescribed in the Revised Penal
Code, take the person arrested to the proper court or judge for such action
for they may deem proper to take;" and by section 11 of Rule 108, which
reads that "after the arrest by the defendant and his delivery to the Court,
he shall be informed of the complaint or information filed against him. He
shall also informed of the substance of the testimony and evidence
presented against him, and, if he desires to testify or to present witnesses
or evidence in his favor, he may be allowed to do so. The testimony of the
witnesses need not be reduced to writing but that of the defendant shall be
taken in writing and subscribed by him.
And it is further corroborated by the provisions of section 1 and 4, Rule
102 of the Rules of Court. According to the provision of said section, "a writ
of habeas corpus shall extend any person to all cases of illegal confinement
or detention by which any person is illegally deprived of his liberty"; and
"if it appears that the person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court or judge, or by virtue
of a judgement or order of a court of record, and that the court or judge
had jurisdiction to issue the process, render judgment, or make the order,
the writ shall not be allowed. "Which a contrario sensu means that,
otherwise, the writ shall be allowed and the person detained shall be
released.
The judicial authority mentioned in section 125 of the Revised Penal Code
can not be construed to include the fiscal of the City of Manila or any other
city, because they cannot issue a warrant of arrest or of commitment or
temporary confinement of a person surrendered to legalize the detention
of a person arrested without warrant. (Section 7, Rule 108; Hashim vs.
Boncan, 40 Off. Gaz. 13th Supp., p.13; Lino vs. Fugoso, L-1159, promulgated
on January 30, 1947, 43 Off. Gaz., 1214). The investigation which the city
of fiscal of Manila makes is not the preliminary investigation proper
provided for in section 11, Rule 108, above quoted, to which all person
charged with offenses cognizable by the Court of First Instance in provinces
are entitled, but it is a mere investigation made by the city fiscal for the
purpose of filing the corresponding information against the defendant with
the proper municipal court or Court of First Instance of Manila if the result
of the investigation so warrants, in order to obtain or secure from the court
a warrant of arrest of the defendant. It is provided by a law as a substitute,
in a certain sense, of the preliminary investigation proper to avoid or
prevent a hasty or malicious prosecution, since defendant charged with
offenses triable by the courts in the City of Manila are not entitled to a
proper preliminary investigation.
The only executive officers authorized by law to make a proper preliminary
investigation in case of temporary absence of both the justice of the peace
and the auxiliary justice of the peace from the municipality, town or place,
are the municipal mayors who are empowered in such case to issue a
warrant of arrest of the caused. (Section 3, Rule 108, in connection with
section 6, Rule 108, and section 2 of Rule 109.) The preliminary
investigation which a city fiscal may conduct under section 2, Rule 108, is
the investigation referred to in the proceeding paragraph.
Under the law, a complaint charging a person with the commission of an
offense cognizable by the courts of Manila is not filed with municipal court
or the Court of First Instance of Manila, because as above stated, the latter
do not make or conduct a preliminary investigation proper. The complaint
must be made or filed with the city fiscal of Manila who, personally or
through one of his assistants, makes the investigation, not for the purpose
of ordering the arrest of the accused, but of filing with the proper court the
necessary information against the accused if the result of the investigation
so warrants, and obtaining from the court a warrant of arrest or
commitment of the accused.
When a person is arrested without warrant in cases permitted bylaw, the
officer or person making the arrest should, as abovestated, without
unnecessary delay take or surrender the person arrested, within the period
of time prescribed in the Revised Penal Code, to the court or judge having
jurisdiction to try or make a preliminary investigation of the offense
(section 17, Rule 109); and the court or judge shall try and decide the case
if the court has original jurisdiction over the offense charged, or make the
preliminary investigation if it is a justice of the peace court having no
original jurisdiction, and then transfer the case to the proper Court of First
Instance in accordance with the provisions of section 13, Rule 108.
In the City of Manila, where complaints are not filed directly with the
municipal court or the Court of First Instance, the officer or person making
the arrest without warrant shall surrender or take the person arrested to
the city fiscal, and the latter shall make the investigation above mentioned
and file, if proper, the corresponding information within the time
prescribed by section 125 of the Revised Penal Code, so that the court may
issue a warrant of commitment for the temporary detention of the accused.
And the city fiscal or his assistants shall make the investigation forthwith,
unless it is materially impossible for them to do so, because the testimony
of the person or officer making the arrest without warrant is in such cases
ready and available, and shall, immediately after the investigation, either
release the person arrested or file the corresponding information. If the city
fiscal has any doubt as to the probability of the defendant having
committed the offense charged, or is not ready to file the information on
the strength of the testimony or evidence presented, he should release and
not detain the person arrested for a longer period than that prescribed in
the Penal Code, without prejudice to making or continuing the investigation
and filing afterwards the proper information against him with the court, in
order to obtain or secure a warrant of his arrest. Of course, for the purpose
of determining the criminal liability of an officer detaining a person for
more than six hours prescribed by the Revised Penal Code, the means of
communication as well as the hour of arrested and other circumstances,
such as the time of surrender and the material possibility for the fiscal to
make the investigation and file in time the necessary information, must be
taken into consideration.
To consider the city fiscal as the judicial authority referred to in article 125
of the Revised Penal Code, would be to authorize the detention of a person
arrested without warrant for a period longer than that permitted by law
without any process issued by a court of competent jurisdiction. The city
fiscal, may not, after due investigation, find sufficient ground for filing an
information or prosecuting the person arrested and release him, after the
latter had been illegally detained for days or weeks without any process
issued by a court or judge.
A peace officer has no power or authority to arrest a person without a
warrant upon complaint of the offended party or any other person, except
in those cases expressly authorized by law. What he or the complainant may
do in such case is to file a complaint with the city fiscal of Manila, or directly
with the justice of the peace courts in municipalities and other political
subdivisions. If the City Fiscal has no authority, and he has not, to order
the arrest even if he finds, after due investigation, that there is a probability
that a crime has been committed and the accused is guilty thereof, a
fortiori a police officer has no authority to arrest and detain a person
charged with an offense upon complaint of the offended party or other
persons even though, after investigation, he becomes convinced that the
accused is guilty of the offense charged.
In view of all the foregoing, without making any pronouncement as to the
responsibility of the officers who intervened in the detention of the
petitioners, for the policeman Dumlao may have acted in good faith, in the
absence of a clear cut ruling on the matter in believing that he had complied
with the mandate of article 125 by delivering the petitioners within six
hours to the office of the city fiscal, and the latter might have ignored the
fact that the petitioners were being actually detained when the said
policeman filed a complaint against them with the city fiscal, we hold that
the petitioners are being illegally restrained of their liberty, and their
release is hereby ordered unless they are now detained by virtue of a
process issued by a competent court of justice. So ordered.
Paras, Actg. C.J., Pablo, and Bengzon, JJ., concur.
Separate Opinions
PERFECTO, J.:, concurring:
Petitioners Melencio Sayo and Joaquin Mostero were apprehended at 11:30
in the morning of April 2, 1948, upon complaint of Bernardino Malinao, for
the crime of alleged robbery.
The fact is alleged expressly in respondent's answer supported by the
affidavit of Benjamin Dumlao (Exhibit 1), the patrolman who made the
arrest. Therein it is also alleged that petitioners were "finally" placed under
arrest at 4:30 p.m. and 5:00 p.m. respectively, on the same day, April 2,
l948.
The distinction between the two arrests, the apprehension made at 11:00
a.m. and the "final arrest at 4:30 and 5:00 p.m., is purely academic or
imaginary. There was but one arrest, effected at 11:00 a.m., April 2, 1948,
and continued without interruption until the petition had been filed with
us April 5, 1948, at the hearing on the next day. Until the moment we are
writing this opinion we have not heard that petitioners have been released
at any time.
Respondents allege also that on April 3, 1948, at about 8:30 a.m., a criminal
complaint was filed with the fiscal's office of Manila, and that by said filing
their duty to deliver arrested persons, within six hours from their arrest, to
a proper judicial authority has been duly complied with.
There is no dispute that no warrant of arrest has ever been issued for the
apprehension of petitioners.
Petitioners pray for their immediate release, alleging that, as the six-hour
period provided in article 125 of the Revised Penal Code had expired, their
continued detention is illegal.
Article 125 of the Revised Penal Code provides for the penalty of arresto
mayor or in its maximum period to reclusion temporal, or from 4 months
and 11 days to 20 years imprisonment, for the crime of a public officer or
employee who, after detaining a person, "shall fail to deliver such person
to the proper judicial authorities within the period of six hours."
Both parties implying from the above provision that after six hours of said
failure, petitioners shall be entitled to be released, discussed the question
whether there is such failure or not.
Upon the very facts alleged by respondents and supported by documentary
evidence accompanying it, there should not be any dispute that there is
such failure.
(a) Respondents have not delivered the persons of petitioners to any
authority, and much less to any judicial authority.
(b) Their filing of a complaint with the office of the fiscal of Manila is not a
delivery of the persons of petitioners. Said persons are not a complaint. A
complaint, whether oral or written, can never be elevated to the category of
the person. No one is crazy enough to confuse or identify a person with a
complaint.
(c) Even in the false hypothesis that respondents, by filing the complaint,
intended to make a delivery of the persons of petitioners, if not actually,
constructively, the fiscal's office is not a judicial authority.
(d) Under our Constitution and laws, judicial authorities comprehend only
courts of justice, such as the Supreme Court and all other inferior Court,
and justices and judges. The authority possessed and exercised by judicial
authorities is judicial, and the Constitution(section 1, Article VIII) vests the
judicial power exclusively "in one Supreme Court and in such inferior courts
as may be established by law."
Respondents' pretension in making the fiscal of Manila a judicial authority
is absolutely groundless, upon the clear letter of the fundamental law.
Counsel for respondents himself had to admit that said officer belongs to
the administrative or executive department. Under the tripartite system of
the government established by the Constitution, it is extreme absurdity to
make an administrative or executive officer, or any officer of the executive
department or branch, a judicial authority. Such will make of separation of
powers a madman's illusion.
That a fiscal is not a judicial authority has been unmistakably declared in
the decision in Lino vs. Fugoso, L-1159, 43 Off. Gaz., 1214. The statement
made therein that there was yet no purpose of deciding whether a fiscal is
a judicial authority or not, is just a rhetorical figure that is a judicial
authority or not, is just a rhetorical figure that should not deceive any one.
All those who can read, will that the decision has made the declaration. It
is there stated in plain language that the fiscal is "unlike" a judicial
authority.
"Unlike" means, as an elementary school student knows, not like, dissimilar,
diverse, different.
No warrant of arrest having been issued by any competent tribunal for the
apprehension of petitioners, said apprehension appears to be illegal.
At any rate, even under the hypothesis that it was legal and continued to be
so for six hours, this time having expired seven days ago, the continued
detention and confinement of petitioners is clearly illegal, and not only
illegal but criminal, involving an offense committed by public officers and
heavily punished by the Revised Penal Code.
Regarding the question as to legality of the arrest, counsel for respondents
has advanced the shocking theory that police officers may arrest any
person just for questioning or investigation, without any warrant of arrest.
The theory is absolutely unconstitutional and could have been entertained
only under the "Kempei" system implanted by the brutal Japanese army
occupation. Such theory represents an ideology incompatible with human
dignity. Reason revolts against it.
Respondents are ordered, upon notice of the decision, to immediately
release the two petitioners and to report to this Court the time when the
release shall have been effected.
TUASON, J., dissenting:
I dissent on the grounds stated in my dissent in Lino vs. Fugoso et al., Off.
Gaz., 1214.
RESOLUTION
August 27, 1948
FERIA, J.:
This is a motion for reconsideration of our decision which holds that the
phrase "judicial authority" used in the article 125 of the Revised Penal Code,
to whom a person arrested without warrant shall be delivered by the officer
making the arrest within the period of six hours from the arrest, means a
competent court or judge, and the City Fiscal is not such a judicial
authority.
We have already held, in the United States vs. Fortaleza, 12 Phil., 472,477-
479, that the provisions of the Provisional Law for the application of the
provisions of the Spanish Penal Code in the Philippines by Royal Decree of
September 4, 1884, are in force of this Islands insofar as they have not been
repealed or amended by implication by the enactment of the body of laws
put in force in these Islands since the change from Spanish to American
sovereignty. According to the ruling of this court in said case, a person may
be arrested without warrant in the cases specified in Rules 27 and 28 of
said provisional law and section 37 of Act No. 183 (Charter of Manila). The
provisions of said Rules 27 and 28 are substantially the same of those
contained in section 6 Rule 109 of the Rules of Court which superseded
them; and the provisions of section 37 of Act No. 183 above reffered to
have been incorporated in section 2463 of the Revised Administrative Code.
Both section 6 of Rule 109, and the pertinent provisions of said section
2463 of the Revised Administrative Code are now the laws in force on the
subject.
Article 30 of said Provisional Law for the application of the Penal Law in the
Philippines also provides:
The executive authorities or the agents detaining a person shall
release the same or else turn him over to the judicial authorities
within twenty four hours after the arrest if made in the head town
of the district, or within as brief a period as the distance and
transportation facilities permit.
And the next article 31 of the same law reads as follows:
Within twenty four hours after the person arrested has been
surrendered to the competent judge of Court of First Instance, the
latter shall order the commitment or release of the prisoner by
warrant containing the grounds on which it is based (auto
motivado).
If it is impossible to do so because of the complexity of the facts,
the number of defendants or any other serious cause, which must
be made of record, the time of detention may be extended to three
days. Upon the expiration of that period of time the judge shall
order the commitment or the release of the defendant. The warrant
 of commitment shall be ratified after the defendant has been heard
within the period of sixty two hours from the time the defendant
has been committed to prison.
Said Rule 30 has been modified by section 17, Rule 109, which provides
that "Any person making arrest for legal ground shall, without unnecessary
delay and within the time prescribed in the Revised Peal Code, take the
person arrested to the proper court or judge for such action as they may
deem proper to take," and by article 125 of the Revised Penal Code already
quoted.
But the provisions of Rule 31 above quoted are still in force because they
may have not been repealed, either expressly or by implication, by any law
or the present Rules of Court, except the last sentence, thereof which is no
longer in force. The procedure of hearing the accused after he has been
committed to prison referred to in said last sentence, is a sort preliminary
investigation by the judge or justice of the peace according to the present
procedure. Persons arrested or accused in the City of Manila are not entitled
to such investigation. In provinces the justice of the peace or judge shall,
according to section 2 of Act No. 194, "make the preliminary investigation
of the charge as speedily as may be consistent with the right and justice,
but in any event he must make the investigation within three days of the
time the accused was brought before him, unless the accused or
complainant shall ask for delay in order that witnesses may be obtained, or
for other good and sufficient reason, in which event a continuance for a
reasonable time may be allowed." This provision of section 2 of Act No. 194
is still in force, because no law has been enacted amending or repealing it.
(Marcos vs. Cruz [May 13, 1939] 1st Supp., 40 Off. Gaz., 174, 182.) The Rules
of Court on Criminal Procedure do not undertake to dispose of all subjects
of preliminary investigation, and repeal all laws on the subject not
incorporated therein; especially those that, like the said provisions of
section 2, Act No. 194, confer substantive rights upon defendants which
can not be diminished, increased or modified by the Rules of Court (section
13, Article VIII, of the Constitution).
In view of the provisions of section 17, Rule 109, Rule 31 of the Provisional
Law, article 204 of the old Penal Code, from which article 125 of the Revised
Penal Code was taken, and section 1 (3) Article III of the Constitution, there
can be no doubt that the judicial authority within the meaning of article
125 of the Revised Penal Code must be a judge who has authority to issue
a written warrant of commitment or release containing the ground on which
it is based (auto motivado). Because said section 17 of Rule 109 expressly
provides that the officer making the arrest without warrant shall, within the
time prescribed in the Revised Penal Code, take the person arrested to
a court or judge for such action as the latter may deem proper to take; Rule
31 expressly states that, within twenty four hours or at most three days
after the person arrested has been delivered to the judge of Court of First
Instance (and alsothe justice of the peace now), the latter shall order the
commitment or release of the prisoner by a warrant containing the ground
upon which the commitment or release is based (auto motivado); article 204
of the Penal Code (not incorporated in the Revised Penal Code), penalize the
judicial authority or judge who fails to comply with the provisions of said
Rule 31; and section 1(3) Article III of the Constitution provides that no
warrant shall issue but upon probable cause, to be determined by
the judge after examination under oath or affidavit of the complainant and
witnesses he may produce," in order to safeguard "the right of the people
to be secured in their person ... against unreasonable seizure" or detention
for a longer period than that fixed or considered by law as reasonable (six
hours according to section 125 of the Revised Penal Code).
It is obvious that the city fiscal is not a city judge, and has no power to
issue order or commitment or release by a written warrant containing the
ground on which it is based. As a matter of fact the city fiscal has never
exercised such power since that office was created. In justice to the city
fiscal, we have to state that the latter did not and does not contend in his
motion for reconsideration that it has the power to issue such a warrant, as
contended in the dissenting opinion.
To consider a city fiscal as a judicial authority within the meaning of article
125 of the Revised Penal Code, would be to place a person arrested in
provinces without warrant in a better position than those arrested in the
City of Manila. Because, as there is no law requiring the city fiscal to act or
file an information against such person within a limited period of time,
after the arresting officer has taken the prisoner to the city fiscal within six
hours, the prisoner may be held under detention without any warrant for
days and weeks and possibly months until such time as the city fiscal may
take action, either by releasing the prisoner without filing any information,
or filing an information with the proper city court and obtain a warrant of
commitment. While a person arrested outside of the City of Manila has to
be delivered by the arresting person or peace officer to the competent judge
within six hours after his arrest, and the latter shall have to investigate the
charge and issue a warrant of release or commitment of the prisoner within
the period of twenty four hours or at most three days prescribed in said
article 31 of the Provisional Law.
It is obvious that the surrender or delivery to the judicial authority of a
person arrested without warrant by a peace officer, does not consist in a
physical delivery, but in making an accusation or charge or filing of an
information against the person arrested with the corresponding court or
judge, whereby the latter acquires jurisdiction to issue an order of release
or of commitment of the prisoner, because the arresting officer can not
transfer to the judge and the latter does not assume the physical custody
of the person arrested. And in the City of Manila it does consist in delivering
physically the body of the prisoner to the city fiscal, for the latter will not
assume the responsibility of being the custodian of the prisoner; nor in
making or lodging a complaint against him with the said fiscal, because the
latter has no power to order the commitment or release of the prisoner by
a warrant containing the ground on which it is based (auto motivado). Such
delivery is a legal one and consists in making a charge or filing a complaint
against the prisoner with the proper justice of the peace or judge of Court
of First Instance in provinces, and in filing by the city fiscal of an
information with the corresponding city courts after an investigation if the
evidence against said person so warrants. Upon the filing of such
information will the prisoner be deemed deliver to a judicial authority in
the City of Manila within the meaning of article 125 of the Revised Penal
Code?
The city court or judge need not make an investigation of the facts alleged
in the information, which the judge or justices of the peace in provinces
have to make before issuing the proper warrant, because the law vest the
power in the city fiscal, but said city judge shall determine only the legal
question whether said facts constitute an offense or violation of
ordinances, and issue a warrant of commitment if they do, or of release if
they do not.
As a peace officer can not deliver directly the person arrested to the city
courts, he shall deliver him to said court through the city fiscal, and if the
latter does not take the prisoner in time to the latter so that the proper
investigation may be made and information filed within six hours, he has
to release the prisoner in order to avoid criminal liabilty for violation of
article 125 of the Revised Penal Code. The city fiscal is not an agent of the
arresting officer, but as prosecuting officer, he will be recreant to his duty
if he does not do his best to make the investigation and file the
corresponding information in time against the person arrested without
warrant, in order to effect the delivery of the prisoner to the city courts
within the period of six hours prescribed by law, and thus prevent his being
released by the officer making the arrest. If the city fiscal does not file the
information within said period of time and the arresting officer continues
holding the prisoner beyond the six-hour period, the fiscal will not be
responsible for violation of said article 125, because he is not the one who
arrested and illegally detained the person arrested, unless he has ordered
or induced the arresting officer to hold and not release the prisoner after
the expiration of said period.
Section 2640 of the Revised Administrative Code which specifies the
powers and duties of chief of police of the City of Manila, authorizes the
latter "to take good and sufficient bail for the appearance before the city
court of any person arrested for violation of any city ordinance: Provided,
however, That he shall not exercise this power in cases of violation of any
penal law except when the fiscal of the city shall so recommend and fix the
bail to be required of the person arrested." These provisions do not
authorize, either expressly or by implication, the city fiscal to order the
detention of the prisoner if bond is not given, not only because they refer
to the powers of the chief of police of Manila and not of the city fiscal, but
because the only incidental authority granted to the latter is to recommend
the granting of the bail to be required of the person arrested for violation
of any penal law in order that the chief of police may release the latter on
bail. If no bail is given by the person arrested, neither the chief of police,
who is only authorized to release on bail, has power to detain the person
arrested for more than six hours; nor the city fiscal, who is only empowered
to fix and recommend the bail to the chief of police, has authority to order
the detention of persons arrested for violation of a penal law.
The above-quoted provisions of section 2640 of the Revised Administrative
Code refers evidently to persons arrested without warrant, for accused
arrested by virtue of a warrant issued by the courts may be released on bail
only by order of the court or judge that issued the warrant and has exclusive
jurisdiction or control over the person arrested. The purpose of the law in
empowering the chief of police of Manila to release the prisoner if he sets
up a bail, is to relieve the officer making the arrest from the necessity of
taking the prisoner to the city fiscal, and the latter from filing an
information with the proper courts within the period of time prescribed by
law.
The dissenting opinion calls a general principle of law an excerpt of the
Corpus Juris Secundum quoted therein which says that "the officer however
need not necessarily have personal knowledge of the facts constituting the
offense in the sense of having seen or witnessed the offense himself, but
he may if there are no circumstances known to him by which materially
impeach his information, acquire his knowledge from information imparted
to him by reliable and credible third persons or by the information together
with other suspicious circumstances" (6 C.J.S., 599, 600), and after the
quotation adds: "This is a common law rule implanted in the Philippines
along with its present form of government, a rule which has been cited and
applied by this Court in a number of cases (U. S. vs. Santos, 36 Phil., 853;
U. S. vs. Batallones, 23 Phil., 46; U. S. vs. Samonte, 16 Phil., 516).
The above-quoted excerpt is not a general principle of law or a common
law rule implanted in the Philippines. It is a summary of the ruling of
several State courts based on statutory exceptions of the general rule. "It
is the general rule, although there are statutory exceptions and variations,
that a peace officer has no right to make an arrest without a warrant, upon
a mere information of a third person" (5 C.J., p. 404), because "statutes
sometime authorize peace officer to make arrest upon information" (4 Am.
Jur., p. 17). In none of the cases cited in the dissenting opinion has this
Court quoted and applied it. In U.S. vs. Fortaleza, 12 Phil., 472, this Court,
after quoting Rules 27 and 28 of the "Provisional Law for the Application
of the Penal Law" and section 37, Act No. 183, as the law in force in force
in these Islands providing for cases in which a person may be arrested
without a warrant, said:
These provisions quite clearly set out the powers usually conferred
by American and English law upon "peace officers" including
"constables," in making arrests without warrants; and since similar
powers are clearly included in the powers conferred upon "agents
of authority" in the above cited articles of the "Provisional Law,"
there can be no doubt that the Commission, in imposing the duty
of maintaining order and preserving and protecting life and
property within their respective barrios upon municipal councilors
and their lieutenants of barrios, conferred upon such officials
authority to make arrests without warrant not less extensive than
that conferred upon peace officers in Manila in the above-cited
provisions of the Manila Charter. (United States vs. Vallejo, No.
4367, decided by this court on September 3, 1908; also United
States vs. Burgueta, 10 Phil., 188.) (Emphasis ours.)
The case of U.S. vs. Samonte, 16 Phil., 516, one of the cases cited in the last
paragraph of the dissenting opinion, does not contain anything about the
implantation in these Islands of the so-called common law rule. In the case
of U.S. vs. Battallones (not Ballesteros) 23 Phil., 46, cited also therein, this
Court, following the ruling in U.S. vs. Fortaleza, said:
In a former case we held that officials in these Islands, who, "by
direct provisions of law or by appointment of competent authority
are charged with the maintenance of public order and the
protection and security of life and property," have authority to
make arrests without warrant substantially similar to the authority
generally conferred upon "peace officers" in the United States, and
more especially that class of `peace officers' known to American
and English law as constables; and that "the provisions of section
37 of Act No. 183" (the Charter of Manila) "quite clearly set forth the
powers usually conferred by American and English law upon "peace
officers" including "constables" in making arrests without
warrants," and provide that they "may pursue and arrest without
warrant, any person found in suspicious places or under suspicious
circumstances, reasonably tending to show that such person has
committed or is about to commit any crime or breach of the peace;
may arrest, or cause to be arrested without warrant, any offender,
when the offense is committed in the presence of a peace officer or
within his view". (U.S. vs. Fortaleza, 12, Phil., 472, 479.)
And in the case of U.S. vs. Santos, 36 Phil., 853, this Supreme Court has
reiterated the ruling in the previous cases and held:
The powers of peace officers in the Philippines, generally stated,
are the same as those conferred upon constables under the Anglo-
American Common Law. The extent of their authority to make
arrests without warrant and the limitations thereon, as held by the
Supreme Court, are as stated in the language of the Legislature in
the Charter of the City of Manila. (U.S. vs. Fortaleza [1909], 12 Phil.,
472). The Administrative Code (section 2204, edition of 1916;
section 2258, edition of 1917) enjoins municipal policemen to
"exercise vigilance in the prevention of public offenses".
The provisions above quoted of section 37 of Act No. 183 have been
incorporated in section 2463 of the Revised Administrative Code and those
of Rules 27 and 28 were substantially incorporated in section 6, Rule 109
of the Rules of Court. Section 2463 of the Revised Administrative Code
reads as follows:
SEC. 2463. Police and other officers — Their powers and
duties. — The mayor, the chief and assistant chief of police, the
chief of the secret service, and all officers and members of the city
police and detective force shall be peace officers. Such peace
officers are authorized ... to pursue and arrest, without warrant, any
person found in suspicious places or under suspicious
circumstances reasonably tending to show that such person has
committed, or is about to commit, any crime or breach of the peace;
to arrest or cause to be arrested, without warrant, any offender
when the offense is committed in the presence of a peace officer or
within his view;
And section 6 of Rule 109 provides:
SEC. 6. Arrest without warrant — When lawful. — A peace officer or
a private person may, without a warrant, arrest a person:
 (a) When the person to be arrested has committed, is actually
committing, or is about to commit an offense in his presence;
(b) When an offense has in fact been committed, and he has
reasonable ground to believe that the person to be arrested has
committed it;
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
These are the only provisions of law in force these Islands which enumerate
the cases in which a peace officer may arrest a person without warrant, and
the so called common law relating to other cases of arrest without warrant
cited in the dissenting opinion has no application in this jurisdiction.
Therefore, all the considerations set forth in the said opinion about the
disastrous consequences which this Court's interpretation of article 125 of
the Revised Penal Code will bring to a law enforcement, because "the entire
six hours might be consumed by the police in their investigation alone," or
that "even if the city fiscal be given the chance to start his assigned task at
the beginning of the six hours period, this time can not insure proper and
just investigation in complicated cases and in cases where the persons
arrested are numerous and witnesses are not at hand to testify," since "the
police is not authorized to round up the witnesses and take them along with
the prisoner to the city fiscal," are without any foundation. Because they
are premised on the wrong assumption that, under the laws in force in our
jurisdiction, a peace officer need not have personal knowledge but may
arrest a person without a warrant upon mere information from other
person. "The right to make arrests without a warrant is usually regulated by
express statute, and except as authorized by such statutes, an arrest
without a warrant is illegal." (5 C.J., pp. 395, 396.) And statutory
construction extending the right to make arrest without a warrant beyond
the cases provided by law is derogatory of the right of the people to
personal liberty (4 Am. Jur., p. 17).
The investigation which the city fiscal has to make before filing the
corresponding information in cases of persons arrested without a warrant,
does not require so much time as that made upon a complaint of the
offended parties for the purpose of securing a warrant of arrest of the
accused. In all cases above enumerated in which the law authorizes a peace
officer to arrest without warrant, the officer making the arrest must have
personal knowledge that the person arrested has committed, is actually
committing, or is about to commit an offense in his presence or within his
view, or of the time, place or circumstances which reasonably tend to show
that such person has committed or is about to commit any crime or breach
of the peace. And the testimony of such officer on the commission of the
offense in his presence or within his view by the person arrested, or on the
facts and circumstances that tend reasonably to show that said person has
committed or is about to commit an offense, would be sufficient evidence
or basis for the city fiscal to file an information without prejudice to his
presenting of their evidence or witness, if any, during the trial to insure the
conviction of the defendant. If the city fiscal does not believe the testimony
of the officer making the arrest or consider it sufficient, or has any doubt
as to the probability of the prisoner having committed the offense charged,
and is not ready to file an information against him on the strength of the
testimony or evidence presented, there would be no legal reason or ground
for him to wait until further evidence may be secured before dismissing the
case against the prisoner, or detaining the person arrested without warrant
without violating the precept of article 125 of the Revised Penal Code.
After the release of the prisoner, the city fiscal may make or continue the
investigation and file afterwards the proper information against him with
the corresponding court, if the result of the investigation so warrants, in
order to secure a warrant of arrest of the same. Of course, as we have said
in our decision for the purpose of determining the criminal liability of a
peace officer detaining a person for a longer period of time than the six
hours prescribed by article 125 of the Revised Penal Code, "the means of
communication as well as the hour of arrest and other circumstances such
as the time of surrender and the material possibility for the fiscal to make
the investigation and file in time the necessary information, must be taken
into consideration." The period originally fixed by our Penal Code was
twenty four (24) hours, and if the city fiscal believes that the period now
prescribed by article 125 of the Revised Penal Code is short, and that the
law must be amended so as to extend it, it would be proper for the
interested parties to take the case to Congress, since it can not be done by
judicial legislation.
Motion for reconsideration is denied.
Paras, Actg. C.J., Pablo, Bengzon, and Briones, JJ., concur.
PERFECTO, J.:
We agree with the above resolution except that which may be at variance
with our concurring opinion in this case and with our written opinion in
the case of Lino vs. Fugoso, L-1159, 43 Off. Gaz., 1214.
BRIONES, M., concurring:
(in Spanish)
TUASON, J., dissenting:
I vote to grant the motion for reconsideration.
In my dissent from the decision of this Court I contended myself with citing
my dissenting opinion in Lino vs. Fugoso, L-1197, 43 Off. Gaz., 1214, 1246,
as grounds for my disagreement. As the present decision has gone farther
than that decision and contains new statements and conclusions, I deem it
convenient to enlarge on my dissent.
The term "judicial officers" has been defined to be, in its popular sense,
officers of a court (Hitt vs. State, Miss. 181, So. 331) and in its strict sense,
"judges and justices of all courts and all persons exercising judicial powers
by virtue of their office." (Settle vs. Van Evrea, 49 N.Y., 280.) The city fiscal
is a judicial officer in both senses. In the popular or larger sense, he is a
judicial officer because he is a part of the legal machinery created for the
administration of justice. A prosecuting attorney, charged with the
administration of justice and invested with important discretionary power
in a motion for a nolle prosequi, is a judicial officer. (State ex rel. Freed vs.
Circuit Court of Martin Country, Ind., 14 N.E. 2d 910; State vs. Ellis, 112
N.E., 98, 100; 184 Ind., 307.)
In the strict legal sense, the city fiscal is a judicial officer when making
preliminary examination because he performs the function of a justice of
the peace — assuming, as the majority seem to assume, that the conduct of
preliminary examination is a judicial function. By express provision of
section 2465 of the Revised Administrative Code, the city fiscal "shall cause
to be investigated all charges of crimes, misdemeanors, and violations of
ordinances, and have the necessary information or complaints prepared or
made against the persons accused." In addition, section 2, Rule 108, of the
Rules of Court states that "every justice of the peace, municipal judge or
city fiscal shall have jurisdiction to conduct preliminary investigation of all
offenses alleged to have been committed, within his municipality or city,
cognizable by the Court of First Instance."
The city fiscal is not any the less a judicial officer simply because he can
not issue warrant of arrest. The power to issue warrant of arrest is not
essential ingredient of a judicial office. This is especially so when, as in
cases like the present, the accused is already under arrest when the city
fiscal intervenes and there is no need of issuing an order of arrest. As to
power to commit a detained person to prison, if that be necessary, the
majority are not exactly right when they affirm that the city fiscal is not
clothed with it. I shall come to this later.
However that may be, the city fiscal is a "judicial authority" within the
contemplation of article 125 of the Revised Penal Code. This is the
inevitable result from the fact that in the City of Manila, the city fiscal under
the existing scheme of the government is the only officer to whom the
person arrested without warrant may be presented. The majority opinion
admits that the municipal court and the Court of First Instance of Manila
"do not make or conduct a preliminary investigation proper," and criminal
complaints are not filed with them but with the city fiscal. Reasoning from
another angle, we reach the same conclusion. We are to presume that in
using the generic term "judicial authorities" — and in plural — instead of
more specific word "justice," "judge," or "court", the lawmaker intended to
include in the operation of the article under consideration all officers who
are named to receive the prisoner from the arresting officer. We have to
adopt this construction if we are to give effect to the law and the rule of
court I have cited, and if we are to avoid what I might call, without meaning
offense, an absurdity.
Under no canon of statutory construction is there justification for this
Court's opinion that the police and the city fiscal have to share the six hours
fixed in article 125 of the Revised Penal Code. The language, the nature and
the object of this provision unerringly point to the theory that the six hours
mentioned in the Revised Penal Code are meant exclusively for the police
officer who made the arrest. I can discern absolutely no indication of any
intention to have the city fiscal squeeze in his action within this brief
period, a period which, in many cases, is not even sufficient for the police.
Read separately or in conjunction with the entire criminal procedure, article
125 does not furnish the slightest indication of legislative intent to place
the city fiscal and the police under the same category. Article 125 of the
Revised Penal Code was devised for one purpose; section 2465 of the
Revised Administrative Code and section 2, Rule 108, of the Rules of Court
for another. Article 125 is a penal provision designed to prevent and punish
police abuses for which the police are noted. The investigation by the city
fiscal is strictly and essentially procedural. It is an integral part of the
procedure for bringing the case to trial.
Little reflection will disclose the disastrous consequences which this
Court's interpretation of article 125 of the Revised Penal Code will bring to
law enforcement. It nullifies the role of the fiscal in the administration of
criminal law. For sheer lack of time, the release of the prisoner arrested
without warrant will, in a great number of cases, be inevitable, unless the
city fiscal files charges without sufficient and adequate investigation. The
alternative will be for the city fiscal to be on a 24-hour watch lest in his
sleep the time for him to act might slip by.
But this is only a poor alternative. Regardless of any vigilance on his part
the opportunity for the city fiscal to make the required investigation cannot
always be assured. The law gives the police absolute power to detain a
prisoner for six hours without incurring penal liability. There is no law
which obliges the police to take the prisoner to the city fiscal before the
expiration of six hours from the time of arrest. There can be cases where
the entire six hours might be consumed by the police in their investigation
alone, or just in the chasing, collection and transportation to the police
station of the law breakers. This can happen in tumultuous and other mob
offenses in which many people are involved and there is necessity of
screening the guilty ones.
Supposing then that the police should deliver the prisoner or prisoners to
the city fiscal at the last minute of the six hours through the negligence or
by force of circumstances, what time is there for this functionary to comply
with his duty? And even if the city fiscal be given the chance to start his
assigned task at the beginning of the six hour period, can this time insure
proper and just investigation in complicated cases and in cases where the
persons arrested are numerous and witnesses are not on hand to testify? It
is well to remember that the police are not authorized to round up
witnesses and take them along with the prisoners to the city fiscal.
In the light of these consequences I can not imagine that the meaning which
this Court attaches to article 125 of the Revised Penal Code so much as
entered the thought of the legislature. No sound-minded legislature could
have intended to create such situation, which is easy to perceive unless we
assume that the legislative purpose was to tie up the hands of the law and
give lawlessness full sway; unless the legislature wanted to coddle and
pamper lawless elements to a calamitous extreme. When the Court says that
the prisoner, after being released at the end of six hours from the time of
his arrest may be rearrested should the city fiscal find sufficient evidence
and prefer charges against him, it takes for granted that underworld
characters and hardened criminals are honorable men who would keep
themselves ready and handy for a second arrest.
The Court says:
To consider the city fiscal as the judicial authority referred to in
article 125 of the Revised Penal Code, would be to authorize the
detention of a person arrested without warrant for a period longer
than that permitted by law without any process issued by a court
of competent jurisdiction. The city fiscal may not, after due
investigation, find sufficient ground for filing an information or
prosecuting the person arrested and release him, after the latter
had been illegally detained for days or weeks without any process
issued by a court or judge.
What is that "proper process" referred to in the above quoted portion of the
decision? Whatever is meant by "proper process," we should note that there
is no fundamental difference between the proceeding before a justice of the
peace and the procedure followed by the city fiscal. There is nothing
important the justice of the peace may do in the interest of the accused in
the cases triable before the Court of First Instance which the city fiscal may
not do. If the city fiscal can not issue an order of arrest, the justice of the
peace himself does not do so to give the detention the stamp of legality. At
least, I am aware of no law which tells him to take this step, and I can see
no material advantage which an accused could derive from this ceremony.
All the justice of the peace does which matters to the accused is admit him
to bail, if the crime be bailable, and proceed to an investigation.
But the city fiscal does just that; and if the necessary to order the
commitment of the prisoner pending ascertainment of his guilt, the city
fiscal no less than the justice of the peace or judge of first instance has the
authority also, as I propose to show later. In actual practice, a person
arrested without warrant in a regular municipality frequently suffers
greater injustice and is subject to, and frequently goes through, greater
hardships than his counterpart in the City of Manila. We are witness to the
common spectacle of cases being dismissed on motion of the provincial
fiscal for want of sufficient evidence after the prisoner had been bound by
the justice of the peace over to the Court of First Instance for trial and after
he had languished in jail for months or years. Prisoner's detention in that
case is not considered illegal.
This anomaly seldom takes place in cities where the preliminary
investigation is entrusted to the city fiscal. Rarely in the City of Manila is a
case dropped for insufficiency of evidence after it has been determined in
a preliminary investigation that the prisoner should be held for trial. On the
whole, the method by which the preliminary investigation is conducted by
the prosecuting attorney is more conducive to efficiency, minimizes or
eliminates conflicts of opinion in the existence of probable cause, and
better insures prompt dispatch of criminal cases to the lasting benefit of
the prisoner. Only physical impossibility, as I understand it, is in the way
for the adoption of this method throughout the country.
It is a mistake, in my humble judgment, to confuse a prisoner's detention
during the six-hour period fixed in article 125 of the Revised Penal Code
and his continued detention after he is turned over to the city fiscal. As I
have said, article 125 regulates the time within which a police officer may
hold the prisoner under his responsibilty, and it applies to the police alone.
It will hardly be contended that this article, or any other law, or the
constitution limits the period within which a prisoner may be detained after
he is delivered to the justice of the peace. If that is so, and since the city
fiscal acts in lieu of a justice of the peace, there is no sound basis, legal or
practical, for denying to the former the same time and the same freedom of
action that is enjoyed by the latter.
By the same token, there is no sound reason for denying to the proceeding
by the city fiscal the same attributes which adhere to the proceeding before
the justice of the peace. After the arresting officer produced the prisoner
before the city fiscal, the law takes its course in the same manner that it
does when the examining officer is the justice of the peace or judge of first
instance. From that time the arresting officer ceases to have any control
over the prisoner save to keep him in custody subject to the orders of the
city fiscal. The police step out and the law steps in and extends to the
prisoner the mantle of protection against inquisitory examination by the
police. From that time on he enjoys the rights granted by law to all accused
persons — the right to give bail and the right to testify freely uninfluenced
by any fear of violence or other forms of maltreatment. The danger
envisioned by article 125 of the Revised Penal Code is past.
The proceeding before the city fiscal does not lose its character of due
process of law by its being conducted by the city fiscal instead of a judge.
For one thing, preliminary investigation is not a trial. It is a constitutional
right. It is purely a matter of statutory regulation. (Potenciana Dequito vs.
Hugo O. Arellano et al., G.R. No. L-1336; 32 C.J.S., 456.) A judicial
proceeding which lies within the power of the legislature to provide or
withhold without infringing the fundamental law may be placed in the
hands of any officer other than a judge.
The jurisdiction to make a preliminary examination or investigation is not
even considered judicial. Judges who perform this function do not do so as
judicial officers. Municipal executives here and in the United States are
conferred this power. "The power to examine and to commit persons
charged with crime is not judicial, but is one of the duties of the
conservators of the peace, and it may be, and usually is, vested in persons
other than courts, as, for instance, justices of the peace or police
magistrates, or persons exercising jurisdiction analogous to that exercised
by justices of the peace, or who are ex officio justices of the peace, such as
mayors, notaries public, or court commissioners. Power to hold preliminary
examinations may be exercised by the United States commissioners, and
United States district judges who, while making the preliminary
examination, exercise the powers of commissioners only." (16 C.J., 319-
320.)
There is no basis for the fear that "the city fiscal may not, after due
investigation, find sufficient ground for filing an information or
prosecuting the person arrested and release him, after the latter had been
illegally detained for days or weeks without any process issued by a court
or judge." This statement overlooks the consistent and general practice
heretofore followed with clear, express statutory sanction. Section 2640 of
the Revised Administrative Code authorizes the chief of police of the City
of Manila "to take good and sufficient bail for the appearance before the
city court of any person arrested for violation of any city ordinance," while
in cases of violation of any penal law, according to the same article, the
fiscal of the city may, and does, recommend and fix the bail to be required
of the person arrested. Power to fix bail necessarily implies power to
recommend or order the detention of the prisoner if bond is not given. This
in its working is no more nor less than the power to commit an accused to
prison pending investigation of this case, power which the majority
erroneously say is not possessed by the city fiscal.
The constitutional and statutory provisions and rules cited by the majority
are of general application which are good only in the absence of specific
enactments. The controlling provisions in the case at bar are sections 2460
and 2465 of the Revised Administrative Code and section 2, Rule 108, of
the Rules of Court.
The decision further says:
A peace officer has no power or authority to arrest a person without
a warrant upon complaint of the offended party or any other
person, except in those cases expressly authorized by law. What he
or the complainant may do in such case is to file a complaint with
the city fiscal of Manila, or directly with the justice of the peace
courts in municipalities and other political subdivisions. If the city
fiscal has no authority, and he has not, to order the arrest of a
person charged with having committed a public offense even if he
 finds, after due investigation, that there is a probability that a crime
has been committed and the accused is guilty thereof, a fortiori a
police officer has no authority to arrest and detain a person charged
with an offense upon complaint of the offended party or other
persons even though, after investigation, he becomes convinced
that the accused is guilty of the offense charged.
I do not think the foregoing paragraph is relevant to the instant case. We
are not dealing with the authority of a police officer to make arrest without
warrant. There is no question raised against the legality of the petitioners'
arrest. Our problem concerns the time in which the city fiscal may make his
investigation and the scope of his power.
Assuming the above-quoted statement to be pertinent to the issues, the
same can not, in my humble view, pass unchallenged. Under certain, well-
defined circumstances, an officer may and constantly does make arrests
without a court order, with or without complaint. An officer in good faith
may arrest without warrant when he believes that a person is guilty of a
crime, and his belief rests on such grounds as would induce an ordinarily
prudent and cautious man, under the circumstances, to believe likewise. (6
C.J.S., 596.) This practice is not derived from any express authority but on
the necessity of catching law violators before they disappear and hide. I
have not come across any law naming specific offenses for committing
which the offenders shall be arrested without court orders.
It is also a general principle of law that an officer need not necessarily have
personal knowledge of the facts constituting the offense himself, in the
sense of having seen or witness the offense himself, but he may, if there
are no circumstances known to him which materially impeach his
information, acquire his knowledge from information imparted to him
reliable and credible third persons, or by information together with other
suspicious circumstances. (Id., pp. 599, 600.) This principle ought to serve
as a qualification to the ruling laid down by this Court, that "a peace officer
has no power to arrest a person without a warrant upon complaint of the
offended party or any other person." Under the rule I have quoted, a police
officer certainly may arrest a person pointed to him as having committed a
crime provided that the information or complaint comes from a reliable
source and under circumstances as to make an ordinary reasonable man to
believe it to be well-founded. When the victim of a robbery or aggression,
for example, should subsequently spot the criminal and request an officer
to arrest him, the officer would not have to seek or wait for a warrant of
arrest before detaining the man, provided again that there was good ground
to believe the truth of the accusation.
This is a common law rule implanted in the Philippines along with its
present form of government, a rule which has been cited and applied by
this Court in a number of cases. (U.S. vs. Santos, 35 Phil., 853; U.S. vs.
Batallones, 23 Phil., 46; U.S. vs. Samonte, 16 Phil., 516.)
Padilla, J., concurs.
SUPPLEMENTARY
TUASON, J., dissenting:
When I filed my dissent from the decision of the Court on the occasion of
the denial of the motion for reconsideration, it was my understanding that
there was going to be only a minute resolution. I make this remark not as a
complaint but as my explanation for writing my dissent in advance of the
reasoned resolution. Even then I would contend myself with resting my
dissent on what I have already stated did the resolution contain new
propositions to be answered and disclose misunderstanding of some of
many statements to be cleared. As this is in the nature and reply, topics will
be treated without regard to continuity of thought.
The resolution says that article 30 of the Provisional Law for the Application
of the Penal Code in the Philippines has been repealed by section 17 of Rule
109, but that section 31 is still in force except the last sentence. And so,
according to the resolution, is section 2 of Act No. 194.
Without discussing the materiality of those laws, I disagree that they are
still in effect. Like article 30, article 31 of the Provisional Law and section
2 of Act No. 194 deal with procedure in justice of the peace courts in general
covered by the new Rules of Court. The Rules of Court, in the words of their
introductory section, concern "pleading, practice and procedure in all
courts of the Philippines, and the admission to practice law therein." These
Rules are complete revision and a complete re-enactment of the entire field
of procedure, and there is every reason to believe that they were intended
to replace, with some exceptions, all previous laws on the subject,
especially Spanish laws which had long been out of harmony with the new
mode of pleading and practice. If the last sentence of article 31 is repealed,
as the resolution says, I see no valid ground for not holding the other parts
of that article repealed so. "Where a later act covers the whole subject of
earlier acts, embraces new provisions, and plainly shows that it was
intended, not only a substitute for the earlier acts, but to cover the whole
subject then considered by the legislature, and to prescribe the only rules
in respect thereto, it operates as a repeal of all former statutes relating to
subject matter. The rule applies not only where the former acts are
inconsistent or in conflict with the new act, but also even where the former
acts are not necessarily repugnant in express terms, or in all respects, to
the new act." (59 C.J., 919-920.) "While, as a general rule, implied repeal of
a former statute by a later act is not favored, yet `if the later act covers the
whole subject of the earlier act and is clearly intended as a substitute, it
will operate similarly as a repeal of the earlier'." Posadas vs. National City
Bank of New York, 296 U.S., 497; 80 Law ed., 351.)
As the Rules of Court took effect on July 1, 1940, the case of Marcos vs.
Cruz, decided on May 30, 1939, and cited in the resolution, is no authority
for the opinion that no law has been enacted amending or repealing section
2 of Act No. 192.
But this rule of implied repeal holds good only as regards laws of general
application. Another well known rule of the statutory construction tells us
that preliminary investigations in Manila and other chartered cities are to
be excluded from the operation of the Rules of Court. Such investigations
are provided for the special enactments which, because of their special
nature and limited application, must be excepted from and prevail over the
general provisions. "When the provisions of a general law, applicable to the
entire state, are repugnant to the provisions of a previously enacted special
law, applicable in a particular locality only, the passage of such general law
does dot operate to repeal the special law, either in whole or in part, unless
such appeal is provided for by express words, or arises by necessary
implication. An intention to repeal local acts generally is not intolerable
from the fact that the general acts specifically excludes one locality from
its operation." (59 C. J. . 934.) There is no apparent intention in the Rules
of Court to repeal the laws under which preliminary investigations in Manila
have to be conducted by the city fiscal. The contrary contention is
evidenced by section 2 of the rule 108, which provides that "Every justice
of the peace, municipal judge or city fiscal shall have jurisdiction to
conduct preliminary investigation of all offenses alleged to have been
committed within his municipality or city, cognizable y the Court of First
Instance," (Espiritu vs. De La Rosa [July 31, 1947], L-1156, 45 Off. Gaz., 196;
Hashim vs. Boncan [Nov. 22, 1941], 40 Off. Gaz., 13th Supp., p. 13.) In the
first of these cases, Mr. Justice Padilla, speaking for the court, categorically
held that the Rules of Court had not repealed and supplanted the provisions
of the Revised Administrative Code regarding the power and authority of
the City Fiscal to conduct preliminary investigation." And in Hashim vs.
Boncan, the Court, through Mr. Justice Laurel, said:
The framers of the Rules could not have intended to brush aside
these lessons of experience and to tear down an institution
recognized by law and decision and sanctioned by years of settled
practice. They could not have failed to keep intact in effective
machinery in the administration of criminal justice, as expeditious
and simple as any reform they have infused into the new Rules.
The term "proper court or judge" in section 17, Rule 109, of the Rules of
Court1 should be interpreted to mean, in the case of Manila, city fiscal,
under the last mentioned canon of interpretation. In Manila, the city fiscal
performs the duties devolving on justices of the peace in regular
municipalities in the conduct of preliminary investigations, and all criminal
charges by the police and offended parties are filed with him. And it is
admitted that prisoners arrested without warrant in Manila may be taken
only to the city fiscal by the arresting officer. Let it be noted also in this
connection that section 17 of Rule 109 regulates the taking of persons
arrested to the court or judge, not the filing of complaint.
In view of this circumstances; in view of the fact that neither the judges of
first instance nor the municipal judges of Manila are authorized to conduct
preliminary hearings other than the purpose of determining the amount of
bail (section 2474 of the Revised Administrative Code), the result of
applying section 17 of Rule 109 to Manila would be virtually to eliminate
preliminary investigation in this city of persons arrested without a warrant.
The decision creates a vacuum, a situation which this Court on another
occasion refused to countenance in the forceful language above quoted in
Hashim vs. Boncan et. al. There, the Court continued:
To sustain the theory of repeal is to wipe out these advantages. Not
only this. If neither section 11 nor section 13 of Rule 108 is
applicable to the preliminary investigation conducted by the City
Fiscal, as we have above shown, and if existing legislation thereon
is to be deemed repealed, then the matter would be left uncovered
by rule or law. There would thus be a void crying for urgent reform.
There would be no such void if the old and tried procedure is kept
in being, untouched by the new Rules. Withal, our own knowledge
of the history of this portion of the Rules here involved does not
warrant an interpretation not contemplated when we drafted and
deliberated upon these Rules. And while, perhaps, the language
could have been clearer and the arrangement made more logical,
consideration to expediency and the avowed purpose of
preliminary investigation point to the already trodden path
hereinabove indicated.
The resolution has interpreted article 125 of the Revised Penal Code with
meticulous adherence, at best, to its latter, and open disregarded, at worst,
of its spirit and of the pernicious results that follow from such
interpretation. The construction which the majority give to the term
"judicial authority" makes it impossible for the city fiscal to perform his
assigned duties with the consequence that for lack of time, malefactors will
have to be turned loose before proper investigation in conducted, or
prosecution filed on insufficient evidence, in many cases.
Nevertheless, I am not pleading, in the case, for a departure from the letter
of the law. I merely submit that the city fiscal, as was emphasized in my
dissent from the decision, is a judicial officer or judicial authority both in
the popular and the legal sense of the term, and that it is unjust,
unwarranted by any rule of interpretation, absolutely disastrous to the
administration of criminal law to identify the city fiscal with the police,
forcing him to file an information or release the prisoner within the six
hours intended for the arresting officer alone. I do not contend that the
term "judicial authority" be expanded beyond its literal and legal meaning,
although if necessary this might be done to carry out the obvious purpose
of the law, but I take exception to the unjustified restriction and limitation
placed on the meaning of "judicial authority" which not only does violence
to the letter and spirit of article 125 of the Revised Penal Code but leads to
an extremely anomalous, not to say impossible, situation. We do not have
to look outside for the meaning of "judicial authority," as a simple reading
of article 125 of the Revised Pena Code and section 2474 of the Revised
Administrative Code yields the clear intent of the legislature. This intent,
as manifested in laws that have been amended by section 2465 and section
2474 of the Revised Administrative Code, crystalized in a system of
practice that have received "the imprint of judicial approval" in various
decisions of this Court. (U. S. vs. McGoven, 6 Phil. 261; U. S. vs. Ocampo, 18
Phil. 122;U. S. Carlos, 21 Phil. 553; Hashim vs. Boncan, ante; Espiritu vs. De
la Rosa, ante.)
The resolution, as a solution to the quandary in which it places the city
fiscal, would have him go to Congress. But, as I trust I have shown, the laws
on the subject need no supplementation and implementation. They have no
gaps to be filled or ambiguities to be cleared. The loopholes exist only as a
direct result of this Court's new ruling. Section 2474 of the revised
Administrative Code and its predecessors have operated smoothly, without
a hitch for nearly half a century. Not even when the arresting officer had 24
hours to take arrested persons to a judicial authority was it ever imagined,
much less asserted, that the city fiscal had to borrow his time from the
police.
The resolution in laying down the rule that the city fiscal has no power to
issue warrant of arrest or "an order or commitment of release by a written
warrant containing the ground on which it is based," thinks it is necessary
to advert, "in justice to the city fiscal," that this official does not pretend to
possess such authority, since it is only in the dissenting opinion, it says,
where the claim is made.
At the outset I deny that I attributed to the city fiscal power to issue warrant
of arrest; and did not say in an unqualified manner that he has power to
issue commitment. On the first point, what I said was an implicit
aknowledgment of the opposite. Let me quote from the second paragraph
of page 2 of my dissenting opinion what I did say:
The city fiscal is not any the less a judicial officer simply because
he can not issue warrant of arrest. The power to issue warrant of
arrest is not essential ingredient of a judicial office.
On the power to commit prisoners, the same paragraph of my opinion
shows what I said.
As to the power to commit a detained person to prison, if that be
necessary, the majority are not exactly right when they affirm that
the city fiscal is not clothed with it. It shall come to this later.
And taking the matter up again on page 11, I said:
Section 2460 of the Revised Administrative Code authorizes the
chief of police of the City of Manila "to take good and sufficient bail
for the appearance before the city court of any person arrested for
violation of any city ordinance," while in cases of violation of any
penal law, according to the same article, the fiscal of the city may,
and does, recommended and fix the bail necessarily implies power
to recommend or order the detention of the prisoner if bond is not
given. This i its working is no more nor less than the power to
commit an accused to prison pending investigation of his case,
power which the majority erroneously say is not possessed by the
city fiscal.
There is nothing in this statement any outright affirmation that the city
fiscal has power to issue commitment papers. There is, on the contrary, an
implied admission that the power, as it is ordinarily exercised by a judge
or court, does not exist. I merely submitted as my personal opinion and
interpretation of section 2460 of the Revised Administrative Code,
regardless of what the city fiscal thinks, that it confers upon the latter
official a power which, performed in conjunction with the power of the
chief of police, amounts in its practical operation to a power to commit a
man to prison. And I said this in answer to the sweeping assertion (which
apparently was made in the decision in complete oblivion of section
2460, supra), that to give the city fiscal unlimited time might result in
injustice, since, the decision says,
The city fiscal may not, after due investigation, find sufficient
ground for filing an information or prosecuting the person
arrested and release him, after the latter had been illegal detained
for days or weeks without any process issued by a court or judge.
I intended to emphasize by citing section 2460 of the Revised
Administrative Code, that a prisoner could secure his released, pending
investigation of his case, in the same manner and with the same facilities
that he could if the complaint or information had been filed with a court.
In citing and stating my interpretation of section 2460 of the Revised
Administrative Code, I wished to show what I considered an erroneous
ruling that
If the city fiscal has any doubt as to the probability of the defendant
having committed the offense charged, or is not ready to filed the
information on the strength of the testimony or evidence
presented, he should release and not detain the person arrested for
a longer period than that prescribed in the Penal Code.
The majority come back with the assertion that the provisions of section
2460 of the Revised Penal Administrative Code2
do not authorize, either expressly or by implication, the city fiscal
to order the detention of the prisoner if the bond is not given, not
only because they refer to the power of the chief of police of Manila
and not of the city fiscal, but because the only incidental authority
granted to the latter is to recommend the granting of the bail by the
chief of police may release the latter on bail.
I disagree again. I do not believe that a provision is rendered nugatory by
the mere fact that it is foreign to the subject of the main provision or to the
title or caption of the section, if otherwise the language is clear. The title
or caption is important only in determining the meaning of laws which are
ambiguous and uncertain. The provision of section 2460 of the Revised
Administrative Code quoted in the resolution does not suffer from such
infirmity.
In truth, the proviso in section 2460 is not alien to the enacting clause. The
proviso relates to the chief of police, conferring on him power of the same
nature as does the enacting clause, with the only difference that, in cases
of violations of a municipal ordinance the chief of police acts
independently, on his own responsibility, while in cases of violations of a
penal law, he acts with the advice of the city fiscal and the latter fixes the
amount of bail. The intervention of the city fiscal was only inserted, in my
opinion, in view of the gravity of the latter class of cases.
As to the other reason given in the resolution why, it says, continued
detention of a prisoner beyond six hours is not authorized — namely, that
the authority granted to the city fiscal to recommend the granting of bail
by the chief of police and to fix the amount of bail to be required of the
person arrested, is only incidental — my comment is that, whether the
power to take bail or release prisoners belongs to the city fiscal or the chief
of police, is inconsequential. To my mind, the important point is that the
accused, as the resolution admits, may be released on bond. From this
power, irrespective of who possess it, is implied the power to keep the
prisoner under detention if he does not file a bond.
When the resolution concludes that if no bond is given by the person
arrested, "neither the chief of police, who is only authorized to release on
bail, has power to detain the person arrested for more than six hours; not
the city fiscal, who is empowered to fix and recommend the bail to the chief
of police has authority to release person arrested in violation of penal law,"
I can not follow. In a nutshell, the majority's reasoning, as I understand it,
is that the law authorizes the city fiscal to recommend and fix the bail "in
order that the chief of police may release the latter (prisoner) on bail," but
that if the prisoner does not put up a bond to be set at large just the same.
The filing of bail is not a meaningless gesture which may be taken
advantage of by an accused at pleasure with the same effect. The privilege
to put a bond extended to an accused must be the price or condition of his
temporary release. The law does not have to say in so many words that if
he does not put a bond he would be kept in confinement in order that we
may be warranted in reaching this result.
The resolution says that "the purpose of the law in empowering the chief of
police of Manila to release the prisoner if he puts up a bail, is to relieve the
officer making the arrest the necessity of taking the prisoner to the city
fiscal, and the latter from filing an information with the proper courts
within the period of time prescribed by law."
I have reflected closely on the meaning of this statement to be sure that I
did not misunderstand it. Unless I still fail to grasp the idea, I think the
statement is self-annulling and self contradictory. The filing of bail cannot
relive the arresting officer from the necessity of taking the prisoner to the
city fiscal for the simple reason that such bail, in cases of violations of
penal laws, can be filed only on recommendation of, and its amount can be
fixed by, the city fiscal. In other words, the prisoners necessarily has to be
taken to the city fiscal before any bond can be executed. And it would be
underestimating the intelligence of an accused to expect him to file a bond
within six hours from the time of his arrest if he is aware that, if at the end
of those hours the city fiscal had not preferred any charges against him and
no order of commitment had been issued by the proper judge, he (accused)
had to be released. In the face of the latter theory, no prisoner would, even
if he could, perfect a bond within six hours knowing that if he did not, he
would be a free man, at leased temporarily, within what remains of six
hours, while if he did, the bond would enable the city fiscal to take his time
to file case against him in court.
The gravamen of the court's argument seems to be that a commitment by a
court or judge is essential to validate the detention beyond the time
specified in the Revised Penal Code. I do not share this opinion. Neither
such commitment by a judge nor a formal complaint is required by the
constitution in order that a person may lawfully be kept in jail pending
investigation of his case. An opportunity to file a bond in reasonable
amount satisfies the constitutional demands. Nor does the bail have to be
fixed or granted by a court. Sheriffs and police officers have been authorize
by statutory enactments in other jurisdiction to take bail. At least one court
has gone so far as to uphold, "independently of statue, a practice of long
standing on the part of the sheriff to take bail in criminal cases of prisoners
committed for not filing bail, and release them from confinement."
(Dickinson vs. Kingsbury, 2 Day [Com., 1.] Now then, under section 2460 of
the Revised Administrative Code, the chief of police of Manila, as already
shown, is allowed to take bail by himself in cases violation of a municipal
ordinance and with the intervention of the city fiscal in other cases. Under
this provision and this practice, a detention prisoner arrested without
warrant is not deprived of any privilege of benefit guaranteed by the
constitution. The lack of formal complaint does not in the least prejudice
him or deprive him of any benefit enjoined by his counterparts in the
provinces. On its legal aspect, let it be observed that all the proceedings
conducted by the city fiscal is a preliminary and summary inquiry which is
purely a matter of statutory regulation. Preliminary investigation by the
prosecuting attorney when authorized by law is due process no less than
one conducted by a judge. It may be suppressed entirely, and if it may be
suppressed, it may be entrusted to any officer, provided only the
constitutional right to give bail is carefully safeguarded. As this Court has
said in Hashim vs. Boncan, supra, and U.S. vs. Ocampo, supra:
The prosecuting attorney of the city of Manila is presumed to be as
competent to conduct a preliminary investigation as the average
person designated by law to conduct a "preliminary examination"
under the provisions of General Orders No. 58. He is a sworn officer
of the court, and the law imposes upon him the duty of making such
investigations. For such purpose the legislature may designate
whom it pleases within the judicial department.
The resolution has taken pain to cite and explain in detail what it says are
the laws on arrests in the Philippines, and takes me to task for quoting from
6 Corpus Juris Secundum, 599-600 and citing the decisions of this Court.
We are told the effect that the excerpts from my dissenting opinion, quoted
on page 16 of the resolution are without any foundation because, it is said,
they are premised on the wrong assumption that, under the laws in
force in our jurisdiction, a place officer need not have personal
knowledge but may arrest a person without a warrant mere
information from other person.
The resolution assumes that those excerpts are predicated on what I call
the common law rule, on Corpus Juris Secundum, and on decisions of the
Supreme Court.
I commend a reading to my dissenting opinion. It will be seen that I did not
base on those laws, rules or decisions my statements, "The entire six hours
might be consumed by the police in their investigation alone;" "Even if the
city fiscal be given the chance to start his assigned task at the beginning of
the six hour period, this time can not insure proper and just investigation
in complicated cases and in cases where the persons arrested are numerous
and witnesses are not on hand to testify," and "The police is not authorized
to round up witnesses and take them along with the prisoner to the city
fiscal." It will be seen that far from using as my premise those laws, rules
and decisions, which I said contain in brief outlines the powers of police
officers to make arrests, I said clearly on page 12 of my dissenting opinion:
I do not think the foregoing paragraph is relevant to the instant
case. We are not dealing with the authority of the police officer to
make arrest without warrant. There is no question raised against
the legality of the prisoner's arrest. Our problem concerns the time
period within which the city fiscal may make his investigation, and
the scope of his power.
It was the majority decision which brought the question of the authority of
the police to make arrests into the discussion. I only met the decision on
its own territory though I regarded that territory as outside the legitimate
circle of the present dispute. I cited Corpus Juris Secundum and decisions
of this Court, which I said are derived from common law, to refute the
statement,
a fortiori, a police officer has no authority to arrest and detain a
person charged with an offense upon complaint of the offended
party or other person seven though after investigation, he becomes
convinced that the accused is guilty of the offense charged.
I especially wanted to express my disagreement with the thesis in the
decision that
A peace officer has no power or authority to arrest a person without
a warrant upon complaint of the offended party or any other
person, except in those cases expressly authorized by law.
It was my humble opinion that the rules I cited and the rules on which the
decisions of this Court are predicated, were general provisions of law
applicable to varying and changed circumstances, and I wanted to deny the
insinuation that there were, or there might be, arrests without warrant
"expressly authorized by law"; so I countered that "I have not come across
any law naming specific offenses for committing which the offenders shall
be arrested without court orders." This is my concept of express provisions
authorizing arrests without a warrant.
Section 6 of Rule 109, section 2463 of the Revised Administrative code, and
the provisional Law on the subject of arrest, cited in the resolution in an
attempt to show the error of my citations, can not be a source of comfort
to the majority. Rather, I should think, they reinforce my position, for I
believe that the rules and decisions I cited the rules and laws called to our
attentions as the real thing, are in substantial agreement. My mistake was
in not citing, myself, Rule 109, section 6, of the Rules of Court, section 2463
of the Revised Administrative Code, and the Provisional Law. I might have
found and cited them had I thought the matter worthy of more than a
passing notice.
Now that the resolution has gone into this subject at length, I shall devote
a few more lines to it at the peril of tiring the reader on what I believe an
impertinent topic.
My citation from Corpus Juris and my comment that "this is a common law
rule implanted in the Philippines along with its present form of
government, a rule which have been cited or applied by this Court in a
number of case," has met with decision. I am informed that my quotation is
"not a general principle of law or common law rule implanted in the
Philippines"; that "it is the summary of the ruling of several states courts
based on statutory exceptions of the general rule."
I do not think I wise wide off the mark when I said that the common law
rule has been transplanted to this country along with the present form of
government and that the rules and decisions I have quoted spring from the
common law. And the majority are not closer to the marked when they
affirmed that my quotation from Corpus Juris Secundum, and section 2463
of the Revised Administrative Code are purely statutory creation.
There was common law before there were statutes. Common law in England
and in the U. S. preceded statement statutes and constitutions. Statutes and
constitutions in matters of arrest came afterwards, restating, affirming,
clarifying, restricting or modifying the common law.
The English common law has been adopted as the basis of
jurisprudence in all the states of the Union with the exception of
Louisiana "where the civil law prevails in civil matters." (11 Am. Jur.,
157.) And
in England, under the common law, sheriffs, justices of the peace,
coroners, constables and watchmen were entrusted with special
powers as conservators of the peace, with authority to arrest felons
and persons reasonably suspected of being felons. Whenever a
charge a felony was brought to their notice, supported by
reasonable grounds of suspicion, they were required to apprehend
the offenders, or at the least to raise hue and cry, under the penalty
of being indicted for neglect of duty.
See the footnote on pp. 2512-2513, Vol. 2, of Jones Blackstone and the
numerous cases therein cited. It is a footnote appended o the statement of
a common law principle which of the same tenor as that just noted.
Treatises on arrest not infrequently start with a statement of the common
law rule and speak of statute and constitutions in the sense I have
mentioned. Moran's Commentaries on the Rules of Court mention of the
common law. (Vol. 2, p. 577) in connection with the power to make arrest
without a warrant.
The doctrine taken from 5 C. J., 395-396-that "the right to make arrest
without a warrant is usually regulated by express statute, and, except as
authorize by such statutes, an arrest without a warrant is illegal" — is not
at war with the proposition that the authority of peace officers to make
arrest originated at common law and that constitutions and statutes merely
re-stated and defined that the authority with greater precision, naming the
officers who may make arrest, the grades of offenses for, and the
circumstances under, which arrest may be effected, etc. Arrests made by
officers not designated or under circumstances not coming within the
terms of the statute or constitution are illegal.
Even then, broad constitutional or statutory inhibition against search and
seizure of property or persons without a warrant has exceptions, as can be
inferred from the two sentences preceding the above sentence quoted in
the resolution. This exceptions are cases where the public security has
demanded the search and seizure.
Well established exceptions to this rule have been long recognized
in cases of felony, and of breaches of the peace committed in the
presence of the party making the arrest. (5 C. J., 395.)
Arrests under such circumstances are authorized in spite of statutes and
constitutions. The power to make such arrest is deeply rooted in the
unwritten or common law, which "includes those principles, usage and
rules of action applicable to the government and security of person and
property which do not rest for their authority an any express or positive
declaration of the will of the legislature." Although acting at his peril, the
powers to arrest on" probable cause of suspicion" even by a private person
are "principles of the common law, essential to the welfare of society, and
not intended to be altered or impaired by the Constitution." (Wakely vs.
Hart, 6 Binn. [Pa.,], 316.)
I have remarked that there is no fundamental difference between my
citations, on the other hand, and section 6 of Rule 109 and section 2463 of
the Revised Administrative Code, Cited by the majority of the Court, on the
other hand. There is only a difference in phraseology. The very case of U.
S. vs. Fortaleza relied upon in the resolution speaks of barrio lieutenant's
power to make arrest as not inferior to that usually conferred on peace
officers known to American and English law as constables.
The resolution quotes this from 5 C. J., 404:
It is a general rule, although there are statutory exceptions and
variations that a peace officer has no right to make an arrest
without a warrant upon mere information of a third person.
This is only a part of the sentence. The omitted portion is more important
from my point of view and contradicts the point of view and contradicts
the point stressed by the majority. The complete sentence in.
It is a general rule, although there are exceptions and variations,
that a peace officer has no right to make an arrest without a warrant,
upon mere information of a third person or mere information of
committed, that right being limited to arrests for offenses of the
grade of felony, as elsewhere shown.
It will be noticed that the quoted portion relates to arrest for misdemeanor.
For further proof, I invite attention to the title of the Section on page 401,
paragraph (a), which reads: "For Misdemeanor — aa. In General." Let it be
noted that the power to arrest for misdemeanor is different from, and more
restricted than, the power to arrest for felony, as is further demonstrated
by the last clause of the full sentence above quoted. This clause refers us
back to section 30, p. 399, which says:
"At common law, (here again common law mentioned), and subject to the
provisions of any applicatory statute, and subject officer may arrest,
without a warrant, one whom he has reasonable or probable grounds to
suspect of having committed of felony, even though the person suspected
is innocent, and generally, although no felony has in fact been committed
by any one, although, under some statutes a felony must have been actually
committed, in which case an may arrest, without a warrant, any person he
has reasonable cause for believing to be the person who committed it."
As is elsewhere stated, section 6 of Rule 109 and section 2463 of the
Revised Administrative Code, like the authorities I have cited, do not limit
the power of a police officer to make arrest tho those cases where he saw
with his own eyes or heard with his own ears the commission of an offense.
Section 6 of a Rule 109 and section 2463 of the Revised Administrative Code
empowers police officers.
to pursue and arrest, without warrant, any person found in
suspicious places or under suspicious circumstances reasonably
tending to show that such person has committed, or is about to
commit, any crime or breach of the peace,
and section 6 of Rule 109 authorizes a peace officer or a private person to
make arrest when
an offense has in fact been committed, and he has reasonable
ground to believe that the person to be arrested has committed it
Rule 28 of the Provincial Law itself empowers judicial and administrative
authorities "to detain, or cause to be detained person whom there is
reasonable ground to believe guilty of some offense" or "when the authority
or agent has reason to believe that unlawful act, amounting to a crime had
been committed."
To make arrest on suspicion or on information is not new; it is an everyday
practice absolutely necessary in the of public security and firmly enshrined
in the jurisprudence of all civilized societies. The power to arrest on
suspicion or on reasonable ground to believe that a crime has been
committed is authority to arrest on information. Information coming from
reliable sources maybe, and it often is, the basis reasonable ground to
believe that a crime has been committed or of reasonable ground of
suspicion that a person is guilty thereof. Suspicion reasonable ground and
information are interviewed within the same concept.
The necessary elements of the ground of suspicion are that the
officer acts upon the belief of the person's guilt, based either upon
facts or circumtances within the officers own knowledge, or
information imparted by a reliable and credible third person
provided there are no circumstances known to the officer sufficient
to materially impeach the information received, It is not every idle
and unreasonable charge which will justify an arrest. An arrest
without a warrant is illegal when it is made upon mere suspicion or
belief, unsupported by facts, circumstances, or credible
information calculated to produce such suspicion or belief.
Failure to take these principles into account has led to the belief that:
The investigation which the city fiscal has to make before filing the
corresponding information in cases of persons arrested without a
warrant, does not require so much time as that made upon a
complaint of the offended parties for the purpose of securing a
warrant of arrest of the accused. In all cases above enumerated in
which the law authorizes a peace officer to arrest without warrant,
the officer making the arrest must have personal knowledge that
the person arrested has committed, is actually committing, or is
about to commit an offense in his presence or within his view, or
of the time, place or circumstances which reasonably tend to show
that such person has committed or is about to commit any crime or
breach of the peace. And the testimony of such officer on the
commission on the offense in his presence or within his view by the
person arrested, or on the facts and circumstances that tend
reasonably to show that said person has committed or is about to
commit an offense, would be sufficient evidence or basis for the
city fiscal to file an information without prejudice to his presenting
of other evidence of the defendant. (Pp. 16-17 of the Resolution.).
Section 6 of Rule 109 of the Rules of Court and section 2463 of the Revised
Administrative Code, as well as the authorities I have quoted, show the
fallacy of the idea that the arresting officer knows, or should know, all the
facts about the offense for the perpetration, or supposed perpetration, of
which he has made the arrest. The resolution fails to realize that in the great
majority of cases an officer makes arrest on information or suspicion; that
"suspicion implies a belief or opinion as to the guilt based upon facts or
circumstances which DO NOT AMOUNT TO PROOF," and that information
and suspicion by their nature require verification and examination of the
informers and other persons and circumstances. While an officer may not
act on unsubstantial appearances and unreasonable stories to justify an
arrest without a warrant, obviously in the interest of security, an officer
who has to act on the spot and cannot afford to lose time, has to make
arrest without satisfying himself beyond question that a crime has been
committed or that the person suspected is guilty of such crime. A police
officer can seldom make arrest with personal knowledge of the offense and
of the identity of the person arrested sufficient in itself to convict. To
require him to make an arrest only when the evidence he himself can
furnish proves beyond reasonable doubt the guilt of the accused, would
"endanger the safety of society." It would cripple the forces of the law to
the point of enabling criminals, against whom there is only moral
conviction or prima facie proof of guilt, to escape. Yet persons arrested on
necessarily innocent so that the prosecuting attorney should release them.
Further and closer investigation not infrequently confirm the suspicion or
information.
The majority of arrests are not as simple as a police officer catching a thief
slipping his hand into another's pocket or snatching someone else's bag, or
suprising a merchant selling above the ceiling price, or seizing a person
carrying concealed weapons. Cases of frequent occurrence which confront
the police and the prosecution in a populous and crime-redden city are a
great deal more complicated. They are cases in which the needed evidence
can only be supplied by witnesses, whom the arresting officer or private
persons has not the authority or the time to round up and take to the city
fiscal for examination with in what remains, if any, of six hours.
Let me give two examples.
1. A murder with robbery is reported to the police. An alarm is broadcasted
giving a description of the murderer. Later a police officer is told that the
wanted man is in a store. He proceeds to the store and. besides believing in
good faith of his informant, detects in the man's physical appearance some
resemblance to the description given in the alarm. All this occurs at the
holy hours of night.
Should the officer refrain from making an arrest because he is not certain
beyond reasonable doubt of the identity of the suspected murderer? Should
the city fiscal order the release of the prisoner because of insufficiency of
evidence and because the six hours are expiring, or should he prefer formal
charges (if that can be done at midnight) on the strength of evidence which,
as likely as not, may be due to a mistaken identify? Should not the
prosecuting attorney be given, as the law clearly intends, adequate time to
summon those who witnessed the crime and who can tell whether the
prisoner was the fugitive?, allowing the prisoner to give bail, if he can.
2. A police officer is attracted by screams from a house where a robbery
has been committed. The officer rushed to the place, finds a man slain, is
told that the murderers have filed. The officer runs in the direction
indicated and finds men with arms who, from appearances, seem to be the
perpetrators of the crime. The people who saw the criminals run off are not
sure those are the men they saw. The night was dark, for criminals like to
ply their trade under cover of darkness.
The officer does not, under these circumstances, have to seek an arrest
warrant or wait for one before detaining the suspected persons. To prevent
their escape he brings them to the police station. On the other hand, would
the fiscal be justified in filing an information against such persons on the
sole testimony of the police officer? It is not his duty to wait for more
proofs on their probable connection with the crime? Should the city fiscal
file an information on sufficient evidence, or should he as the only
alternative, order the release of the prisoners? Does either course subserve
the interest of justice and the interest of the public? If the arrested persons
are innocent, as they may be, is either interest be served by hasty filing of
information against them, or would they rather have a more thorough
investigation of the case?
Cases like these with varying details can be multiplied ad infinitum. They
form the bulk of underworld activities with which the forces of law have to
cope and with which the general public is vitally concerned. The public
would not be secure in their homes and in the pursuit of their occupations
if his Court, through unreasoning worship of formalism, throws down a
method, practice and procedure that have been used here and elsewhere
from time immemorial to the end of service and in the interest of public
security. The public security. The public is not much interested in such
minor offenses as pick-pocketing, fist fights and misdemeanors or
violations of municipal ordinances for which arrests can be made by police
officers only when committed in their presence or within their hearing.
The decision of this Court leaves the city fiscal no alternative between
releasing prisoners for insufficiency of evidence due to lack of time to
secure more, and filing information against persons who may be innocent
of the crimed charge. The latter course, defeats directly the very aims of
preliminary investigation is to secure the innocent against hasty, malicious
and oppresive prosecution and to protect him from open and public
accusation of crime, and from the trouble, expense, anxiety of a public trial,
and also to protect the State from useless and expensive prosecutions.
(Hashim vs. Boncan, No. 47777, January 13, 1941; 40 Off. Gaz., 13th Supp.
p. 13; U.S. vs. Mendez, 4 Phil.; 124; U.S. vs. Grant and Kennedy, 11 Phil. 122;
U. S. vs. Marfori, 35 Phil. 666; People vs. Colon, 47 Phil. 443.) Even more
deplorable would be the acquittal of guilty accused due to lack of proofs
which the prosecution, if it had been afforded sufficient time, could have
gathered.
The foregoing goes, too, for the concurring opinion. There is only one more
point to which we wish to address ourselves briefly. The concurring opinion
contains this passage:
Dentro de las 6 horas hay tiempo mas que suficiente para meter en
cuenta atoda la canalla ... Pero; por Dios que no se violen ni pisoteen
lasgarantias constitucionales por miedo a los gangsters!
No one can disagree with this though — as an abstract proposition. The
only trouble is that the opinion does not cite any concrete constitutional
provision or guaranty that is infringed by our dissent. I take the suggestion
in the resolution — that "it would be proper for the interested parties to
take the case to Congress, since it can not be done by judicial
legislation" — to be a tacit recognition that the matter is purely one of
statute and that no constitutional impediment is in the way of changing the
law and enlarging the power of the city fiscal in the premises. And let it be
said that the objection in the concurring opinion to this suggestion is
rested, not on constitutional grounds but on the supposition that the law is
good enough to be left alone. All which tempts us to paraphrase the famous
apostrophe of that equally famous woman in French history, and exclaim,
"Oh Constitution! what grievous mistakes are committed in thy name!"
The concurring opinion is in error when it sees shadows of fear gangster in
our dissent. Society no less than a natural person has the right to protect
itself, and the arrest and punishment of transgressors of its laws is one of
its legitimate means of self-protection and self-preservation. As far as the
insinuation of fear may reflect on those who are duty bound to have part in
such arrest and punishment, the application of criminal laws without
quarters to the end which they are intended to serve, is not in strict logic a
sign of apprehension. Such course, rather than tolerance, leniency or
indifference towards crimes and appeasement of lawless and other
elements and groups who wield the power of physical and verbal relations,
calls for exactly the opposite quality of fright.
Padilla, J., concurs.
Footnotes
1
Any person making arrest for legal ground shall, without
unnecessary delay and within the time prescribed in the Revised
Penal Code, take the person arrested to the proper court or judge
for such action as they may deem proper to take.
2
There shall be a chief of police who ... may take good and
sufficient bail for the appearance before the city court of any
person arrested for violation of any city ordinance: Provided,
however, That he shall not exercise this power in cases of violations
of any penal law, except when the fiscal of the city shall so
recommend and fix the bail to be required of the person arrested; .
...
MISTAKE OF FACT
G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
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 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 Ibañez, 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.
(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 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 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:
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 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 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 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 and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
Separate Opinions
TORRES, J., dissenting:
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.
G.R. No. 424 January 27, 1902
THE UNITED STATES, complainant-appellee,
vs.
MARCOSA PEÑALOSA and ENRIQUE RODRIGUEZ, defendants-appellants.
Francisco Rodriguez, for appellants.
Alfredo Chicote, for private prosecutor.
WILLARD, J.:
Article 475 of the prevailing Penal Code provides as follows:
Any minor who shall contract marriage without the consent of his
or her parents or of the persons who for such purpose stand in their
stead shall be punished with prision correccional in its minimum
and medium degrees.
The accused were convicted in the lower court for the violation of this
article, it appearing from the evidence adduced that the accused, Marcosa
Peñalosa, was not 21 years of age on the 3rd day of May, 1901, when she
married the codefendant, and that she contracted the marriage without the
consent of her father.
Should the judgment appealed from be affirmed if the woman was in fact
less than 21 years of age, without taking into consideration what was her
belief concerning her age? Many instances can be called to mind in which
there may exist an error in good faith concerning this point. A man who is
about to marry and is ignorant of his exact age seeks and obtains a certified
copy of the registry of his baptism. From this it appears that he was born
twenty-one years before the 1st day of June, let us say. He marries on the
15th day of June. It develops later that the person who took the copy of the
registry of baptism read July as June, and as a matter of fact the man in
question did not complete his twenty-one years until the 1st day of July,
fifteen days after his marriage. Can such a one be convicted of a violation
of article 475? It would seem that this case is included within those of the
article. He was in fact a minor when he married, and he married without the
consent of his parents. It is true that so far as the parent is concerned the
offense has been committed, but can the same be said with reference to the
State in the absence of a voluntary violation of the law? Article 1 of the Code
does not contain the word "with malice" that are to be found in the Code of
1822; nevertheless Pacheco, the eminent commentator, has said that those
words are included in the word "voluntary" (El Codigo Penal Concordado y
Comentado, Vol. I, folio 74, third edition); and he states positively that
crime can not exist without intent.
Other commentators, without being in entire conformity with Pacheco,
nevertheless are agreed up to a certain point. Groizard says: "Such is the
general rule; so it is ordinarily." (Codigo Penal de 1870, Vol. I, folio 37.)
Viada says that "in the majority of cases, in the absence of intent there has
been no crime; but that there can exist in some cases the latter without the
former." (Vol. I, Codigo Penal Reformado de 1870, folio 16.) Silvela says: "In
effect if suffices to remember the first article, which states that where there
is no intent there is no crime, ... in order to assert without fear or mistake
that in our Code the substance of a crime does not exist if there is not a
deed, an act which falls within the sphere of ethics, if there is not a moral
wrong." (Vol. 2, Derecho Penal, folio 169.)
The theory that the absence of the words "with malice" in the prevailing
Code has this effect is supported by the provisions of article 568 which
says: "He who by reckless negligence commits an act which would
constitute a grave crime if malice were present shall be punished," etc.
The Supreme Court in several successive sentences has followed the same
doctrine: "It is indispensable that this (action) in order to constitute a crime
should carry with it all the malice which the volition and intention to cause
the evil which may be the object of the said crime suppose. (Judgment of
May 31, 1882.)
In a cause for falsity the facts involved were that the defendant had married
"before the municipal judge of the pueblo of Rubete without other
ceremony than the simple manifestation and expression of his wishes and
those of the woman Leonor with whom he married before said municipal
judge; that relying upon that, on account of his ignorance and lack of
instruction, on the 27th of June, 1882, and the 5th of April, 1884, in the
municipal court of the pueblo of Polopos he registered as legitimate
children his sons, Jose and Emilio the offspring of the illicit union of the
defendant and Leonor Gonzalez." For the crime of falsity committed by
reckless negligence the Criminal Audiencia of Albunol condemned the said
defendant to the penalty of four months and one day of arresto mayor. The
Supreme Court annulled said sentence "considering that whatever might be
the civil effects of the registration of his three sons entered by the accused
in the Civil and Parochial Registers, it can not partake of the nature of a
crime for lack of the necessary element of volition or intent to offend,
essential to every punishable act or omission; neither did he act with
negligence." (Judgment of March 16, 1892.)
In a cause prosecuted against the Chinese Sy-Ticco and against Don
Guillermo Partier, in the court of Quiapo, for falsification of trade-marks,
the Criminal Chamber of the Audiencia of Manila condemned the Chinaman
to two years and some months of presidio correccional, and Partier to one
year and some months of similar imprisonment. A writ of error was sued
out in the name of Partier. The Supreme Court annulled this sentence,
"considering that the moral element of the crime, or, in other words,
existence or nonexistence of intent and malice in the commission of an act
designated and punished by the law as criminal is essentially a question of
fact for the exclusive judgment and determination of the trial court."
Considering that the act charged against the accused, Guillermo
Partier, of having printed in his lithographic establishment the
trade-mark of the cigarette packages of the Insular factory by virtue
of a supposed order of the owner of said factory, to whose injury
the Chinaman Abelardo Zacarias Sy-Ticco ordered him to do the
said fraudulent printing, can not be considered (from the facts
declared proved in the final sentence of acquittal of the Court of
First Instance, accepted in its entirety and without any addition by
the Appellate Court) as constituting intentional participation or
cooperation in deed of falsification and defraudation committed by
the former, since it does not appear in any part of the sentence that
Partier was in connivance with Sy-Ticco nor that he had any reason
to suspect the true character of him who, styling himself the
representative of Señor Santa Marina, the owner of the La Insular
factory, gave him the order to print the trade-mark of this factory
 on the packages, which were to be used to hold cigarettes.
(Judgment of December 30, 1896.)
The judgment of October 4, 1893, is of the same tenor. It is not necessary
to hold in this action that no crime mentioned in the Code can exist without
intent. It suffices for the present to decide, as we do decide, that one can
not be convicted under article 475 when by reason of a mistake of fact there
does not exist the intention to commit the crime.
It remains for us to apply this principle to the facts of the present case. The
defendant has stated that she believed that she was born in 1879; that so
her parents had given her to understand ever since her tenderest age; that
she had not asked them concerning her age because her father had given
her to so understand since her childhood. Her father was present in the
court room as the complaining witness. If his daughter was deviating from
the truth it would have been an easy matter for him to have testified
denying the truth of what she had stated. It is evident that he was interested
in the conviction of his daughter, and the fact that the complaining witness
did not contradict her obliges us to accept as true the statements of the
witness. Being true, they disclose that she acted under a mistake of fact;
that there was no intention on her part to commit the crime provided for
and punished the article 475.
As for the husband, it has been proved that two days before the marriage
was celebrated he received a letter from the woman in which she said that
she was 21 years of age. This letter the defendant showed to the clergyman
who married them. The woman when the marriage ceremony was
performed took an oath before the clergyman, in the presence of her
husband, that she was 21 years of age. The defendant testifies that he had
no suspicion that the woman was a minor. This statement has not been
contradicted and we consider that it suffices to demonstrate that the
defendant acted under a mistake of fact, and in conformity with the
principle laid down in this opinion he has not been guilty of a violation of
article 475 in connection with article 13, No. 3, nor in any other manner.
The conviction of the defendants in accordance with article 568, together
with article 29 of General Orders, No. 58, has not been prayed for, and even
if it had been we do not consider the evidence sufficient to sustain a
conviction in accordance with this article. Her husband has the right to
accept the sworn statement of the woman. The only person whom she could
ask for information was her father, and he had told her age repeatedly.
For the reasons above set forth the sentence of the lower court is reversed
with reference to both defendants, acquitting them freely with costs of
suit de oficio.
It is so ordered.
Arellano, C.J., Cooper, Torres, and Mapa, JJ., concur.
Ladd, J., did not sit in this case.
[G.R. No. 7929. November 8, 1912. ]
THE UNITED STATES, Plaintiff-Appellee, v. GENOVEVA APEGO, Defendant-
Appellant.
Tirso de Irureta Goyena for Appellant.
Attorney-General Villamor for Appellee.
SYLLABUS
1. HOMICIDE; ATTEMPTED RAPE; DEFENSE BY A WOMAN AWAKENED FROM
SLEEP AND BELIEVING HERSELF ATTACKED. — When a sleeping woman is
awakened at night by some one touching her or grasping her arm, and she,
believing that some person is attempting to abuse her asks who the intruder
is and receives no reply, attacks the said person with a pocketknife, and the
nature of the wound shoes that she was either standing up or sitting up at
the time, it is concluded that, notwithstanding the woman’s belief in the
supposed attempt, there was not sufficient provocation to justify her in
using a deadly weapon; although she actually believed it to be the beginning
of an attempt against her, she was not warranted in making such a deadly
assault, as the injured person did not insist or repeat any act which could
be considered as an attempt against her honor.
2. ID.; ID.; PENALTY. — Under the above circumstances, it is further
concluded that she is not entitled to complete exemption from
responsibility, as there does not enter into the act any of the requisites
contained in subdivision 4 of article 8 of the Penal Code; but as she is shown
to be an ignorant woman, devoid of education, she should be allowed the
benefit of article 11 of the Code, as amended by Act No. 2142, without any
aggravating circumstance, and the penalty, two degrees lower as prescribed
by article 86, should be imposed in the minimum degree.
Per TRENT, J., dissenting:chanrob1es virtual 1aw library
1. HOMICIDE; ATTEMPTED RAPE; DEFENSE BY WOMAN AWAKENED FROM
SLEEP AND BELIEVING HERSELF ATTACKED. — The defendant, a single
woman, twenty-five years of age, lived with her married sister. The spouses
returned to their house one night where the defendant was sleeping, and
failing to awaken her they ascended the stairs and entered the house. The
husband, in groping around in the dark, stumbled over the sleeping woman
and touched her left arm. The woman, under the impression that she was
being assaulted with intent to commit rape, stabbed her brother-in-law with
subsequent fatal results. Immediately after delivering the blow, her sister
lit a lamp and the defendant then for the first time became aware of the
identity of her supposed assailant. Held: The mistake of the defendant was
excusable under the circumstances.
2. ID.; ID.; ID.; PENALTY. — Where the mistake of fact is excusable,
punishment, if any is due, must be predicated upon the operative facts
constituting the mistake of the defendant.
3. ID.; ID.; ID., ATTEMPTED RAPE; SELF-DEFENSE. — This court has already
held that a would-be ravisher takes his life in his own hands in attempting
to commit the crime of rape, and that the woman attacked is entitled to an
absolute acquittal for any defense she may make: this in a case where the
woman was physically the superior of her assailant and a way of retreat was
open to her.
4. ID.; ID.; I.; SELF-DEFENSE; UNITED STATES v. AH CHONG (15 Phil. Rep.,
488), this court held that the murder of the deceased by his male friend,
committed while laboring under the misapprehension that the deceased
was a robber attempting to enter the house at night, was excusable and
acquitted the defendant, even though the evidence showed that the
defendant attacked the deceased with intent to kill. In the case at bar it is
held that a woman in practically the same situation, but believing that the
attack is made with intent to rape her, is not justified in going so far in the
exercise of her right of self-defense as to kill her assailant, this although
there is a strong presumption from the evidence that the blow which she
struck at her assailant was fatal by the merest chance.
DECISION
TORRES, J. :
This case comes to us on appeal from a judgment of February 15, 1912, by
which the Honorable Mariano Cui, judge, sentenced the appellant to the
penalty of twelve years and one day of reclusion temporal, to the
accessories, to pay an indemnity of P1,000 to the heirs of the deceased, and
the costs.
At about 8 o’clock in the evening of December 24, 1911, the spouses, Pio
Bautista and Maria Apego, coming from the municipality of Nasugbu,
returned to their house, situated in the barrio of Sampaga, pueblo of
Balayan, Batangas, and before entering the same called to Genoveva Apego,
the woman’s sister, who they knew was therein, and, as they received no
reply, went up into the house; the husband led the way and opened the
door; he was followed by his wife who, once inside, lit a match and then a
small kerosene lamp there was in the house. In the meantime the husband
approached the place where Genoveva was, who, startled, immediately
awoke, seized a pocketknife used in spinning hemp, which was in a box at
her side, and with it attacked and struck Bautista, who was near her, a blow
in the breast; thereupon her sister Maria, who was not aware of the
aggression, asked Genoveva why empty tin cans and other articles were
scattered about the azotea of the house, to which Genoveva replied by
saying: "What! have you arrived already?" and at once got up in front of the
said spouses; at this moment Maria advised her to cogitate and reflect, but
Genoveva immediately ran out of the house, asking for help; it was then
that the wife noticed that her husband was seriously wounded, and when
he was afterwards examined by a physician it was ascertained that he bore
a downward, penetrating wound, in the shape of a T, in the intercostal space
between the second and third ribs of the left side, that it reached one of the
lungs and the heart, was necessarily fatal, and was inflicted with a sharp-
pointed cutting instrument. A few moments after its infliction the injured
man died.
By reason of the foregoing, an information was filed in the Court of First
Instance of Batangas, on January 8, 1912, by the provincial fiscal, charging
Genoveva Apego with the crime of murder, and upon the institution of this
case the aforementioned judgment was rendered.
We accept the classification of homicide given by the trial judge to the facts
involving the violent death of Pio Bautista, since, in the commission of the
crime, it does not appear that there was present any of the qualifying
circumstances that determine a more serious crime and penalty.
It is unquestionable and beyond all doubt that Genoveva Apego, an
unmarried woman of about 25 years of age, inflicted upon the deceased
with a pocketknife a serious wound of a necessarily mortal nature, for he
died shortly afterwards. This wound penetrated the left nipple, extended
between the second and third ribs of the same side from an upper toward
and an outward toward an inner direction and reached the heart and one of
the lungs.

The record does not show whether the deceased was able to make any ante-
mortem statement, nor does it appear to have been ascertained what was
the motive of the fatal aggression of which the said Pio Bautista was the
victim.
The following conclusions of fact are derived from a careful study of this
case: upon the arrival of Maria Apego and her husband, Pio Bautista, at the
stairs of their house, and as Genoveva Apego did not reply to the call made
to her from the outside by her sister Maria, the said spouses went to the
upper floor of the house; Bautista led the way and, in order to enter, opened
the outside door, a sliding door, and as there was no light inside stumbled
against Genoveva Apego, who was sleeping near the said door, and touched
her left arm; thereupon, Genoveva awoke and believing, as she testified,
that somebody was trying to abuse her, seized the pocketknife
aforementioned, asking at the same time who was beside her, and as she
did not receive a reply immediately, she got up and struck the person
before her a blow with the said knife; in the meanwhile Maria Apego had
separated from her husband to light a match and then a kerosene lamp
there was in the house and was not aware of the assault made upon her
husband by her sister, and only when the light had been lit did she see her
sister Genoveva in front of Bautista, who had already been wounded and
was in an attitude indicating that he was about to fall to the floor; thereupon
Genoveva went down out of the house, calling for help, and ran to the house
of an aunt of hers where she was arrested by the policeman, Manuel
Peinado, to whom she then and there delivered the pocketknife with which
she had assaulted her brother-in-law.
In view of the shape and direction of the wound received by the deceased
and the part of the body where it was inflicted, according to the detailed
report of the medical examination, it is unquestionable that the wound was
inflicted by the defendant after she had arisen from the place where she
had been sleeping, or, at least, when she had raised up in a sitting posture
or was seated on the floor, at the time that the deceased perhaps stooped
over, in stumbling against her, touched her left arm; but in no manner may
it be presumed that she assaulted her brother-in-law, Bautista, while she
was still lying on the floor of the house; such a presumption is precluded
by a consideration of the direction the weapon took in penetrating the
deceased breast.
Maria Apego testified that, during the two years her sister Genoveva lived
in their house, the latter had conducted herself correctly, that they had
always gotten along well and harmoniously together and had never had the
least misunderstanding between them. The record does not show whether
there had been any trouble or there existed any resentment between the
defendant and the deceased who, before he died and during the few
moments he lived after he was wounded, make no statement whatever
relative to this point or to the conduct observed by the defendant with
respect to the assault of which he was the victim, and, therefore, the
defendant’s testimony must be accepted, to wit, that she struck a blow with
the pocketknife at the person beside her, and who afterwards turned out to
be her brother-in-law, Pio Bautista, without knowing who he was and in the
belief that, since he touched her left arm, he was about to commit an
attempt against her honor.
Under this hypothesis, it can not be denied that, upon the defendant’s
awakening, startled at feeling somebody grasp her left arm and believing
that an attempt was being made against her honor, as she received no reply
whatever to her question as to who was beside her in the darkness of the
house, she understood that there was a positive unlawful aggression from
which she had to defend herself with the said pocketknife, and it is also
undeniable that there was no previous provocation on her part; but it is
unquestionable that, in making use of this deadly weapon, even in the
defense of her person and rights, by decidedly wounding him who had
touched her or caught her by the arm, the defendant exceeded her right of
defense, since there was no real need of wounding with the said weapon
him who had merely caught her arm, and perhaps did so to awake her, as
she was asleep and had not replied to her sister’s calls; and as the party
who she believed was making an attempt against her honor, because he had
caught her by the arm, performed no other act of aggression such as might
indicated a decided purpose to commit an attempt against her honor than
merely to catch her by the arm, and although the defendant believed that it
was the commencement of such an attempt and that she had to defend
herself therefrom, it is true that, once awake and provided with an effective
weapon for her defense, there was no just nor reasonable cause for striking
a blow therewith in the center of the body, where the principal vital organs
are seated, of the man who had not performed any act which might be
considered as an actual attempt against her honor.
From the foregoing consideration it is concluded that in the commission of
the crime there was present the circumstance of incomplete exemption
from responsibility, as all the three requisites specified in subarticle 4 of
article 8 of the Penal Code are not applicable; wherefore the criminal act is
not altogether excusable, on account of the lack of the second of the said
requisites, although a majority of them were present, that is, the first and
the third requisites; and therefore, in accordance with the provisions of
article 86 of the code, a penalty lower by one or two degrees than that
prescribed by article 404 of the code, in the discretion of the court, must
be imposed upon the defendant.
In view of the fact that the accused is an ignorant woman, wholly
uneducated, and that it was not shown that, at the time when she was
assaulted the deceased, she knew that he was her brother-in-law, account
must be taken of the circumstance prescribed by article 11 of the code, in
connection with Act No. 2142, as no aggravating circumstance whatever
was present to counteract the effects of the said extenuating circumstance;
therefore, the penalty applicable to the defendant is the one lower by two
degrees and in the minimum period.
For the foregoing reasons it is our opinion that, with a reversal of the
judgment appealed from, the defendant, Genoveva Apego, should be, as she
is hereby, sentenced to the penalty of two years of prision correccional, to
the accessories of article 61, to pay an indemnity of five hundred pesos to
the heirs of the deceased, and, in case of insolvency, to subsidiary
imprisonment which shall not exceed one-third of the principal penalty,
and to the payment of the costs of both instances. In computing the time
of the sentence, credit shall be allowed for one-half of the time of
imprisonment suffered by the defendant while awaiting trial. So ordered.
Arellano, C.J., Mapa and Johnson, JJ., concur.
Separate Opinions
CARSON, J., dissenting:chanrob1es virtual 1aw library
I dissent. I am of opinion that there was no criminal intent on the part of
the accused, and that she did what she did in the reasonable belief that she
was acting in defense of her virtue. (U. S. v. Ah Chong, 15 Phil. Rep., 488.)
TRENT, J., dissenting:chanrob1es virtual 1aw library
I dissent. I think the appellant should be acquitted upon the facts stated in
the majority opinion. This court says:jgc:chanrobles.com.ph
"The following conclusions of fact are derived from a careful study of this
case: Upon the arrival of Maria Apego and her husband, Pio Bautista, at the
stairs of their house, and as Genoveva Apego did not reply to the call made
to her from the outside by her sister Maria, the said spouses went to the
upper floor of the house; Bautista led the way and, in order to enter, opened
the outside door, a sliding door, and as there was no light inside stumbled
against Genoveva Apego, who was sleeping near the said door, and touched
her left arm; thereupon, Genoveva awoke and believing, as she testified,
that somebody was trying to abuse her, seized the pocketknife
aforementioned, asking at the same time who was beside her, and as she
did not receive a reply immediately, she got up and struck the person
before her a blow with the said knife; in the meanwhile Maria Apego had
separated from her husband to light a match and then a kerosene lamp
there was in the house and was not aware of the assault made upon her
husband by her sister, and only when the light had been lit did she see her
sister Genoveva in front of Bautista, who had already been wounded and
was in an attitude indicating that he was about to fall to the floor; . . .
". . . the defendant’s testimony must be accepted, to wit, that she struck a
blow with the pocketknife at the person beside her, and who afterwards
turned out to be her brother-in-law, without knowing who he was and in the
belief that, since he touched her left arm, he was about to commit an
attempt against her honor."cralaw virtua1aw library
The court further finds that the appellant immediately upon discovering
what she had done ran out of the house calling for help, and that she, her
sister, and the deceased were on the very friendliest of terms. The result is
that the appellant, a single woman 25 years of age, was alone in the house
when the deceased and his wife arrived. The entry was made without the
appellant’s knowing anything about it, and she was awakened by someone
stumbling against her and touching her left arm. She then realized that
someone was in the house, and, it being so dark that she could not
distinguish the person, and believing as the court says, that the person had
entered for the purpose of raping her, she arose and struck in the dark with
the knife. It later developed that she had struck her own brother-in-law and
killed him.
The very moment she awoke was when she conceived the idea that some
one had entered the house for the purpose of raping her. In the short
interval of time between her awakening and the striking of the fatal blow,
was there any possibility of her disabusing her mind of such a belief, which,
to her, must have amounted to an over-powering her? The wife of the
deceased did not strike the match nor light the lamp until after the
appellant had struck the blow. All was in darkness. It was, then, impossible
for her to ascertain the identity of the deceased before she had used the
knife. So far as the record shows, no word was spoken by either of the
spouses until after the blow had been delivered, and the accused received
no reply to her inquiry as to who was beside her. We must appreciate,
therefore, the entrance of the spouses with more or less noise, their groping
around in darkness of the interior of the house, the awakening of the
defendant from a sound sleep, her being alone in the house, her instant
thought that some one is coming toward her intent upon committing a rape,
increased by the failure of the deceased to answer her question, and the
utter absence of anything to disabuse her mind of such an idea. With her
mind still somewhat sluggish, she realizes the presence of some one
bending over her; she knows she is not alone in the house; the person
bending over her has not uttered a word; he makes no reply when she asks
him who he is; and she is unable to recognize him. What more natural than
that a virtuous woman would instantly arrive at the conclusion that she was
about to be made the victim of an immoral and lewd assault? The court says
that in the absence of any evidence showing resentment existing between
the deceased and the accused, her testimony to the effect that she believed
an attempt was being made against her honor must be believed. I fail to see
what possible bearing resentment entertained by the accused toward the
deceased would have. She did not recognize her assailant until after the
light had been struck. The identity of the deceased did not enter into her
belief that she was about to be raped. Had her assailant been her worst
enemy she would not have known it until after the harm had been done. But
the facts of the case conclusively show that the accused entertained no
resentment toward the deceased. The wife of the deceased testified that her
sister had lived in the house for a long time and that she and her sister had
always been on the most amicable of terms. After the accused became aware
of the identity of the deceased she made not the slightest move to continue
her attack or defense. I therefore agree with the conclusion of the court —
but without reservation — that the testimony of the defendant that she
struck the blow under the impression that she was about to become the
victim of an unchaste assault must be accepted as true.
If the defendant believed that she was subjected to such an unlawful attack,
the question arises, was such a belief excusable under the circumstances?
"The party killing, to justify, must have reasonable apprehension or fear of
death or serious bodily harm, at the time of the killing. . . . But to whom
must he appearance of danger — the apprehension of the party killing —
reasonably appear? To the jury after hearing all the evidence — after
ascertaining the real facts? . . . Or, must the real or apparent danger appear
to the defendant at the time of the homicide to be reasonable? We think the
latter correct. The jury must view the facts upon his standpoint. Each juror
must place himself in the position of the defendant at the time of the
homicide, and determine from all the facts, as they appeared to defendant
at the time of the killing, whether his apprehension or fear of death or
serious bodily harm was reasonable; and, if so, they should acquit." (Bell v.
The State, 20 Tex. App., 445, and other authorities cited in the monographic
note to The States v. Sumner, 74 Am. St. Rep., 707, 723.)
I think that the circumstances of the case at bar, so far as the appellant
could perceive them at the time, were perfectly applicable to an assault with
intent to commit rape, and that, therefore, the only possible way to arrive
at a decision in this case on the merits is to view the whole affair from the
moment the defendant awoke until the fatal blow was struck as an attempt
to commit rape, which resulted in the death of the ravisher. The court does
not expressly state its views on this branch of the case. I understand,
however, that the sentence of conviction is based upon the theory that the
accused exercised her right of self-defense to a disproportionate degree. At
least such would be gathered from the following
language:jgc:chanrobles.com.ph
". . . and although the defendant believed that it was the commencement of
such an attempt and that she had to defend herself therefrom, it is true
that, once awake and provided with an effective weapon for her defense,
there was no just nor reasonable cause for striking a blow therewith in the
center of the body, where the principal vital organs are seated, of the man
who had not performed any act which might be considered as an actual
attempt against her honor."cralaw virtua1aw library
As a matter of fact, the acts of the deceased were perfectly harmless. There
was, as a matter of law, based upon those actual facts, no unlawful
aggression. Based upon those actual facts of the case, there was no excuse
whatever for the homicide. Based upon those actual facts, the crime of
homicide was committed with several aggravating circumstances. The
court, however, has imposed a sentence of two years imprisonment and
accessories. I must therefore believe that the court has tacitly, at least
adopted the view that the sentence of conviction should be predicated;
upon the following operative facts: A would be ravisher approached the
accused in the house where she was sleeping alone,. etc.; in exercising her
right of self-defense, she exceeded the limits of reasonable resistance
against her assailant. In this view of the case, the question arises as to
whether a woman may ever go so far in defense of her chastity as to kill her
assailant, and if so, whether such extreme action was warranted in view of
the circumstances as they presented themselves to the accused at the time
she killed the deceased. To the first part of this question the answer must
be, yes. In repulsing a felonious attack a person may go as far in his self-
defense as may reasonably be necessary, viewing the circumstance of the
case from his point of view. The books are full of cases where this principle
has been applied; but it is doubtful if any may be found where the victim
of an attempted rape was tried for the murder of her assailant. In the case
of United States v. Santa Ana (22 Phil. Rep., 249), this court, in banc,
said:jgc:chanrobles.com.ph
"When a man becomes so debased as to lose every instinct of manhood and
engages himself in the commission of so serious a crime (rape), he certainly
takes his life and liberty in his own hands, and if he loses the latter or
receives serious personal injuries, his loss is no greater than he deserves.
The appellant is therefore entitled to an absolute acquittal upon the ground
of self-defense."cralaw virtua1aw library

As to the second part of the question, it is necessary to again view the
circumstances of the case as they appeared to the appellant at the time she
struck the blow with the knife. The court is of the opinion that she was not
justified in striking that blow because it says the man "had not performed
any act which might be considered as an actual attempt against her honor."
This statement is inexplicable. The only acts which the deceased performed
at all were those of stumbling against her body and touching her left arm,
and the court had already arrived at the conclusion that the woman believed
an attack was being made against her honor. In other words, the attempt
had progressed to the point where her assailant had come in physical
contact with her. Due either to willfulness or negligence, he did not reassure
her as he should have done by answering her inquiry as to who he was. He
was not merely standing at a distance threatening her or making indecent
gestures. She was alone in the house. There was no possible way of retreat.
Her physical inferiority muse be conceded. In another instant he would
have grasped her by the arms and thus prevented her from using the knife
at all. Was this the time to temporize, to threaten, to plead for mercy, or to
strike halfheartedly with a weapon which would be useless to her in another
moment of time? The court would have had her select a less vital part of
the body for the blow; this in the darkness and most probably without being
able to distinguish even the outlines of the human being who had attacked
her. This would have called for deliberation and cool and discriminating
but instant action. Every indication points to the fact that she struck wildly,
perhaps while not yet fully awake, and, by the merest chance, with fatal
results.
In the case of United States v. Ah Chong (15 Phil. Rep., 488), the defendant,
Ah Chong, and Pascual Gualberto, were employed at the officers’ mess in
Fort McKinley, the former as a cook and the latter as a muchacho. The two
occupied the same room and no one else occupied the same building. On
the night of August 14, 1908, Gualberto had gone out for a walk, leaving Ah
Chong alone in the room. About 10 o’clock on that night Ah Chong was
suddenly awakened by some one trying to force open the door of the room.
He called out, "Who is there?" Receiving no reply, he said: "If you enter the
room I will kill you." He then seized a knife and went to the door, which was
suddenly pushed open, and Gualberto entered. It was very dark in the room.
Ah Chong struck out wildly at the intruder, and inflicted blows upon
Gualberto which very shortly thereafter resulted in his death. Ah Chong
thought the intruder was a ladron. He was tried for the killing of Gualberto
and found guilty of homicide and sentenced to six years and one day of
presidio mayor. Upon appeal he was acquitted. This court said, pp. 492,
493:jgc:chanrobles.com.ph
"Under these provisions (Art. 8, Penal Code) we think that there can be no
doubt that defendant would be entitled to complete exemption 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.
x x x
"But the evidence clearly discloses that the intruder was not a thief or
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."cralaw virtua1aw library
In this case a strong man, Ah Chong, was acquitted for killing his friend
upon the ground that he believed that the intruder was a thief or a ladron
seeking entrance for the purpose of larceny or robbery. In the case at bar,
a woman is convicted because she exceed the means necessary to defend
her honor. Had she stated that she believed that the person who touched
her arm had entered for the purpose of larceny or robbery, the two cases
would have been, mutatis mutandis, identical; and under the former, the
court had followed the doctrine laid down in that case, she would have been
acquitted. But as she was defending her honor she has been convicted. The
court squarely places the loss of the property in the former case above the
loss of the honor and virtue of a woman in the latter case. To my mind there
is no comparison between the gravity of the two offenses. The loss of a few
personal articles, either by theft or robbery, cannot compare with the loss
of a woman’s virtue taken from her forcibly. Rape is one of the most
heinous crimes, from a moral standpoint, known to the human race. A
virtuous woman had rather die than be raped. Yet, under the doctrine
enunciated by this court, she is not authorized to use the same means in
repelling a vicious attacked upon her honor that she would be in defending
her personal property. Considering the cases together, this court has said
that a man may kill a person whom he believes to be entering his premises
at nighttime for the purpose of robbery, but that a woman must not go to
that extent to defend her honor. I cannot assent to such a holding.
The appellant should be, in my opinion, acquitted.
MISTAKE IN IDENTITY
G.R. No. L-47722 July 27, 1943
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibañez 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. 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 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 dañar;
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 of alevosia. 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 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 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 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 accused-appellants, 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:
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
años; 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.
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 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.

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