FIRST DIVISION

[G.R. No. 202. September 21, 1901. ]

THE UNITED STATES, Complainant-Appellee, v. CARLOS RASTROLLO, Defendant-Appellant.

DECISION

TORRES, J. :

In civil proceedings instituted to obtain a preventive attachment to secure a debt contracted by Carlos Rastrollo in favor of D. Emeterio Ruiz, 1,121
feet of hose, among other property belonging to said Rastrollo, was attached at the instance of Attorney Florencio Gonzales on behalf of Don
Gerardo Urbina. The attached property remained in the possession of the debtor, Rastrollo, who, with the consent of the attorney for the plaintiff,
sold the same to the Manila Fire Department. Rastrollo failed to deliver the proceeds of the sale, which took place late in March of this year, to the
attorney for the plaintiff, and only deposited the same in the court on the 4th day of June of this year, the day following the filing of the complaint
charging him with the crime of embezzlement (estafa).

If the acts of which the accused is charged constitute any crime whatever it would be that of malversation of property attached by judicial order —
the crime defined and punished in article 395 in connection with articles 390 and 392 of the Penal Code. The act could not be regarded as
constituting estafa under paragraph 5 of article 535 of the Code, because the property alleged to have been misapplied was not the subject of a
mere private bailment but of a judicial deposit. This gives the depositary a character equivalent to that of a public official, and a breach of his
obligation is similar to the violation of the obligations imposed by public office.

However, as the accused, Rastrollo, in selling the said hose, acted with the knowledge and consent of the attorney for his creditor, since it is proved
that the said attorney agreed with the depositary that the proceeds of the sale should be delivered to him, and inasmuch as there is no proof, on the
other hand, that the depositary, Rastrollo, appropriated or applied the proceeds of the sale of the hose to his own use or that of others, but has
deposited the same in court, although somewhat tardily, it is evident that the defendant has contracted no criminal liability. His act does not include
all of the elements which constitute the crime of malversation, or of any other crime, and the irregularity noted in his conduct is chargeable to the
attorney for the creditor who might have been prejudiced thereby.

In view of the foregoing considerations, which are completely in accord with the penal law and the conclusions and merits of the case, the accused,
Don Carlos Rastrollo, should be acquitted and the judgment appealed from reversed with costs in both instances de oficio. It is so ordered.

Arellano, C.J., Cooper, Willard, Mapa and Ladd, JJ., concur.

EN BANC
G.R. No. L-6805 June 30, 1954
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, vs. PEDRO LANCANAN, Defendant-Appellee.

LABRADOR, J.:

This is an appeal from an order of the Court of First Instance of Samar, dismissing an information on a motion to quash. The motion to quash is
based on the alleged failure of the information to allege facts sufficient to constitute a cause of action.chanroblesvirtualawlibrary chanrobles virtual
law library

The principal allegations of the information which originated this criminal case are:

That on or about the 13th day of November, 1951 ... the above-named accused, being then the Chief of Police ... and while entrusted with the
custody or charge and vigilance of (name of persons detained), who were detention prisoners ..., then and there willfully, unlawfully and feloniously
consent to the escape of said prisoners and evade detention by releasing them without the order of the court ... .

The motion to quash alleged:

The original complaint for Illegal Possession of Firearms in Criminal Case No. 2580 was filed on December 19, 1951 although the six accused were
arrested without warrant on November 12, 1951 at about 9:30 in the evening. The fact therefore is clear that on November 13, 1951 when these six
persons were allegedly released by the accused, there was no pending charge against them.

The provincial fiscal opposed the motion to quash, alleging that it is not predicated on the insufficiency of the facts alleged, but on the claim that the
persons released were not yet charged with any valid complaint on November 13, 1951, so their release was made when they were not yet
prisoners detained by a court order - facts which do not appear in the information, but which go to the merits of the case. The court a quo examined
the records of the case and found that on November 12, 1951, the complaint was sworn to before the municipal mayor. It was to be presented to
the Justice of the Peace, but the latter was absent; as a matter of fact the following note was placed on the complaint RECEIVED AND FILED THIS
12TH DAY OF NOV. '51, but no signature appears on the typewritten name of the justice of the peace below the note. Below the above note, the
following note appeared RECEIVED AND REFILED THIS 19TH DAY OF DECEMBER, 1951, under which appeared the signature of the justice of the
peace. There were affidavits attached to the complaint, also dated November 12, 1951, but nowhere does it appear that the municipal mayor made
a preliminary investigation, or issued a warrant for the arrest of the accused therein. On the basis of the above facts and findings the trial court held
that "the herein accused Pedro C. Lancanan has not committed the crime of infidelity in the custody of the prisoners ..." and ordered the dismissal of
the case.chanroblesvirtualawlibrary chanrobles virtual law library

The first error imputed to the trial court is its consideration of facts not alleged in the information. The facts, however, are apparent from the record
and these facts are not denied by the provincial fiscal. Though they may not constitute admissions on the part of the fiscal, they certainly fall within
the spirit and principle contained in People vs. Navarro, 75 Phil., 516. We find no difference between facts merely admitted and undeniable facts
appearing on the record of a case. If one is allowed, there is no reason for denying admission of the other. As the facts are clear and not susceptible
of contradiction, it would be idle ceremony to return the case to the trial court for trial at which the same facts of record will have to be introduced.
It seems more in accord with expendiency for us to overlook the technical irregularity that the trial court is claimed to have committed, which
irregularity we do not here admit to exist because it was sanctioned by us in the case of Navarro, supra, and proceed to determine the validity of the
order of the court on the basis of the facts found in the record, rather than remand the case to the trial court. The claim that the court acted
improperly in the consideration of the motion to quash must be dismissed.chanroblesvirtualawlibrary chanrobles virtual law library

The conclusion of the trial court that the case was not filed until December 19, 1951 is borne out by the record and is correct. The note RECEIVED
AND FILED THIS 12TH DAY OF NOV. 1951 with the typewritten name of the justice of the peace, but without his signature, shows that the complaint
was merely intended to be filed with said official. If the mayor had intended to receive it for filing, he should have signed the above note. There was,
therefore, merely an attempt and intent to file it with the justice of the peace, which attempt was not carried out because the justice of the peace
was absent. An attempt to file, which was not carried out because the official before whom it was to be presented for filing was absent, can not be
confused with actual filing. And swearing a complaint before a municipal mayor is no filing either. The latter official is not a clerk or officer of the
court; no provision of the rules authorizes him to act for and on behalf of the justice of the peace in the acceptance of complaints for filing. The fact
also that the justice of the peace on December 19, 1951 may have believed that on that day the complaint was being refiled, is no reason why we
may conclude that it was filed previously, i. e. on November 12. The alleged error imputed to the trial court for dismissing the complaint is,
therefore, also without merit.chanroblesvirtualawlibrary chanrobles virtual law library

For the foregoing reasons, the order appealed from is hereby confirmed. Without costs.chanroblesvirtualawlibrary chanrobles virtual law library

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and Concepcion, JJ., concur.
EN BANC
[G.R. No. 9964. February 11, 1915. ]
THE UNITED STATES, Plaintiff-Appellant, v. LEON BANDINO, Defendant-Appellee.

DECISION

TORRES, J. :

On December 4, 1912, the municipal president of Antipolo, Province of Rizal, filed a written complaint in the justice of the peace court of the said
pueblo, charging Leon Bandino with the crime of faithlessness in the custody of prisoners committed with reckless negligence. After making the
proper investigation, the justice of the peace transmitted the record of the proceedings to the Court of First Instance. Thereafter the provincial
fiscal, on July 30, 1913, filed an information wherein he charged the said Leon Bandino with the aforementioned crime, alleging that the accused, a
municipal policeman having under his care and guard one Juan Lescano, who was serving a sentence in the municipal jail of the said pueblo, did,
with great carelessness and unjustified negligence, grant him permission to go and buy some cigarettes near the place where he was held in
custody; that the prisoner, taking advantage of the confusion in the crowd there, fled from the custody of the accused; with violation of article 358
in connection with article 568 of the Penal Code.

A demurrer was filed to the complaint on the grounds that the facts therein alleged did not constitute a crime, but, on the contrary, proved the
innocence of the accused. The court held that the prisoner’s escape was not effected with the connivance of his custodian, so that the said crime
could not exist, nor did that of escape accompanied by reckless imprudence. He consequently sustained the demurrer and ordered the prosecuting
attorney to file a new complaint.

The provincial fiscal then reproduced the previous complaint, adding thereto the words "in tacit connivance with the said prisoner," that is, that the
accused did, with exceeding carelessness and unjustified negligence, permit the prisoner to buy cigarettes outside of the jail. Counsel for the
accused likewise demurred to this new complaint, on the ground that it was not drawn up in conformity with the legal provisions governing the
crime charged and because the facts therein set forth did not constitute a cause of action, but completely exempted the accused from responsibility.

After trial of the case and consideration of the arguments of the provincial fiscal and the attorney for the accused. the court, by an order of the 19th
of January of last year. sustained the demurrer filed by the defense and, in view of the fact that the provincial fiscal’s statement that he could not
further amend his complaint as he believed it to be sufficient as it was, the court finally dismissed the case, ordering the release of the accused and
the cancellation of the bail bond, with the costs de officio. The provincial fiscal excepted to this order and appealed therefrom.

Article 358 of the Penal Code prescribes that "any public officer guilty of connivance in the escape of a prisoner in his custody shall be punished,"
etc.

If there was connivance or consent on the part of the policeman, Leon Bandino, in Juan Lescano’s leaving the jail, it is unquestionable that he is
responsible for the crime with which he is charged on account of the escape effected by the said prisoner who took advantage of the leave allowed
by his custodian on June 30, 1912.

In the existence and commission of the crime of faithlessness in the custody of prisoners, it is essential that there should have been, on the part of
the custodian, connivance in the escape of the prisoner. If the public officer charged with guarding the fugitive did not connive with him, then he did
not violate the law and is not guilty of the crime of faithlessness in the discharge of his duty to guard the prisoner.

The renowned juridical writer Escriche, in his dictionary "Legislacion y Jurisprudencia," defines the word "connivance" to be "dissimulation or
tolerance, in the superior, of infractions or transgressions committed by his inferiors or subordinates against the institutions or laws under which
they live."cralaw virtua1aw library

It may perhaps be true that the accused had no knowledge that the prisoner Lescano would escape, and that he did not permit him to do so, but it is
unquestionable that he did permit him to go out of the municipal jail, thus affording him an opportunity to get away with ease. Therefore the
prisoner’s escape was effected through the tolerance of his custodian, and is deemed also to have been by connivance with the latter.

According to the rules established by the courts, there is real and actual evasion of service of a sentence when the custodian, failing intentionally or
maliciously to perform the duties of his office, and conniving with the prisoner, permits him to obtain a relaxation of his imprisonment and to escape
the punishment of being deprived of his liberty, thus making the penalty ineffectual, although the convict may not have fled, and where the
prisoner’s leaving the jail and his evasion of service of the sentence were effected with the consent and tolerance of the custodian, or rather in
agreement and connivance with him.

Even though the accused committed the crime of faithlessness with carelessness, in violation of regulations or with culpable negligence, the case
should not be dismissed nor should the crime go unpunished.

For the foregoing reasons the order appealed from is revoked and the record will be remanded to the court from whence it came in order that such
proceedings be had as the law requires.

Arellano, C.J., Johnson, Moreland and Araullo, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-1940-42 March 24, 1949
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
IGNACIO LAGATA, defendant-appellant.

PERFECTO, J.:

The witnesses in the this case testified in substance as follows:

PROSECUTION

1. Eusebio Abria 20 single farmer Jinangutdan, Santa Rita Samar. — On October 3, 1946 he was in the provincial jail detained for illegal possession of
firearm, but his case was dismissed. Ignacio Lagata was a provincial guard Six Prisoners were then assigned to work in the capitol's plaza; Jesus,
Tipace, Eusebio Mariano the witness and Epifanio Labong. their guard ordered them to go to the nursery to pick up gabi. Not long afterwards they
were called to assemble. Epifanio Labong was missing. The nursery is near the provincial hospital in Catbalogan. The place was grassy. Lagata
ordered the five prisoner to call Labong (4-7). As Labong did not answer Lagata ordered the five prisoners to look for him. They followed the trail.
Upon reaching the nation highway, Lagata called them. As Labong did not answer their call Lagata ordered the five to look farther for him. The five
prisoners went towards the mountain. Upon reaching a camote plantation, "I saw footprints. I called my companions. While we were all in the
camote plantation I did not know that I was shot by Ignacio Lagata. He was about four meter away from me. He fired at my left arm." At the time the
witness was standing one of his companions was at his right side three or four meter behind him. All walked almost together at the moment
because they wanted to see the footprints pointed by the witness. "At the moment that he was hit he immediately called the attention of Ignacio
Lagata 'Mano, I am wounded.' He said it is because you did not approach to me." (8-9). "When I saw that he again manipulated the chamber of his
gun I ran away. When I say that my other companion ran away, I ran also. I noticed that my left arm was wounded. When I was already sitting by the
front of the coconut tree I heard another gun shot." Tipace is already dead "I did not see him anymore. When Ignacio Lagata passed by where I was I
Requested him to take me. He brought me to the justice building Hospital. My left arm is amputated just right at the joint between the shoulder and
the arm. It is not yet completely healed." The witness had no intention to run from Lagata. (11). Labong asked Lagata permission to gather gabi. The
other prisoner did not say anything. Lagata told them to go to the nursery. While they were gathering gabi Lagata was near them. (12). But he could
not see everybody because there was talahib growing in the place and it was tall. The witness heard three shots. The second one hit him. After the
first shot "we were all assembled." (132-14). The witness did not see Tipace being shot. "The reason as to why I ran was because I was afraid that I
might be shot again." (16). His companions were probably scared and that is why they ran. (17).

2. Mariano Ibañez, 25, married detained prisoner Zumarraga, Samar. — On October 3, 1946, he was in the provincial jail as a detained prisoner.
After breakfast, six prisoner were called: Epifanio Labong Ceferino Tipace, Eustaquio Galet, Jesus Manoso, Eusebio Abria and the witness, Mariano
Ibanez. They went to work in the plaza of the provincial jail. At about 11:00 o'clock they were taking a rest and while they were taking a rest the
witness heard Lagata inviting the prisoners to go the nursery to gather near the provincial hospital. They scattered to get gabi. "We scarcely got
three gabis when I heard Ignacio Lagata calling us to assemble." The place was grassy were picking gabi Lagata was standing by the side of a mango
tree. At the call of Lagata only five them to call for him. (19-21). "Inasmuch as Epifanio Labong did not answer our call Ignacio Lagata ordered us to
go to the mountain and look for Epifanio Labong. Eusebio then went to the camote plantation. He foundfootprints and he called Ignacio Lagata to
inform him that he saw footprints. On account of this report of Eusebio that he saw flattened grass and that hewas unable to look for Epifanio
Labong sa Ignacio Lagata filed at him and he was hit on the left arm." He was at about three meter from Lagata. (22). The witness was at the left side
of Ceferino Tipace at about two meter from Abria.Abria said, "Mano, I am wounded." Lagata said in turn, "Come around assemble here." Abria came
to the right side of Lagata. (23). "Oncewe were already assembled there Ignacio Lagata cocked his gun and shot Ceferino Tipace and when I saw that
Ceferino Tipace was hit then I ran away because I had in mind that had i not ran I would have been shot also." At the time Tipace was "standing and
carrying with him on his left arm some gabi and when he turned to the left that was the time when he was shot by Ignacio Lagata. The bullet
penetrated from the left side of the armpit and came out from the right side of the body." Tipace was at about two meter then from Lagata. "At
about 4:00 o'clock in the afternoon of that day I returned to the provincial jail. I did not return immediately because I was afraid." Tipace was killed.
(23). One morning, Lagata gave the witness fist blow on the abdominal region and kicked him at the back Because the pervious night the witness
told the prisoners not to make much noise. "I did not have ill-feeling because he had the right to maltreat me even if I was not at fault." (29). At the
time they were searching for Labong before the shooting they were walking in an ordinary way looking toward the ground one after another at
about half a meter from each other. Lagata was behind all of them. (31).

3. Gilberto C. Rosales 63, married, president Sanitary Division Catbalogan, Samar. — On October 17, 1946, the cadaver of Ceferino Tipace was
exhumed. (35). The witness found in it, "A gun shot wound which went through the body from the lower left axillary region to the right shoulder."
(36).

4. Eustaquio Galet, 20, married detained prisoner. — On October 3, 1946, he was one of the six prisoner who worked in the premises of the capitol
building. (38). "We went to the nursery and each one of us got gabi. The guard Ignacio Lagata was under the mango tree. I was about ten meter
awayfrom him. It was grassy in the place where we were picking gabi. Not long after we were called by Ignacio Lagata because we were going home
already. One was missing, Epifanio Labong. Ignacio Lagata ordered us to call Epifanio Labong but Epifanio Labong but Epifanio Labong did not
answer." (39) The talahib plants growing in the place were taller than myself. " Lagata orderedus to search for Epifanio Labong. We went around the
place and then crossed the national highway and went up the mountain until we reached tom place where cogon grass were growing. Eusebio Abria
and myself saw flattened grass. We informed Ignacio Lagata that there was a trace where a person had passed by or he may have gone that way.
Then Ignacio Lagata fired one time. While we were searching for Epifanio Labong each one of us were bent and leaning looking downward. I heard a
gun shot and that was the time when Eusebio Abria was shot and then once he was hit he called Ignacio Lagata his hand at his wound and then got
near Ignacio Lagata." (40). "Upon seeing that one of our companions was already shot without fault, I ran away and came down to the capitol
building and then went to the provincial jail and reported the matter to the sergeant of the guard." His companion then was Jesus Mañoso. They
reached the provincial jail at about 12 o'clock noon. The shooting took place at about 11:30. (41). The witness heard Labong ask Lagata to
accompany their group to the nursery to gather gabi. When he was shot Abria was bent and leaning his body downward to the ground while Lagata
was behind him. (42). The witness heard the shot that killed Ceferino Tipace. "I was already descending near the Capitol building that was the time
when I heard the shot." (43). Jesus Manoso ran away with the witness, but Ceferino Tipaceand Mariano Ibanez remained. The treatment received by
the witness from Lagata was good. (44).

5. Pedro Mayuga, 39, married, chief, Samar Provincial Hospital. — On October 3, 1946, prisoner Eusebio Abria was brought to the hospital with a
wound on the upper side of his left arm which was amputated from the shoulder joint. "The patient was at first given resuscitating medical
treatment to combat the shock caused by the hemorrhage and later the shoulder joint was disarticulated." After his arm was cut, he was confined in
the hospital until November 6. The wound must have been produced by a gun shot. There are indications that the shot was fired at close range. Very
likely around five meters. (48). There was no possibility of saving the arm because "all the vital tissues were destroyed and the bone in all the vital
parts of the tissues destroyed from outward and inward." (50).

DEFENSE

1. Andres Saludario, 49, married, nursery foreman, Catbalogan, Samar. — On October 3, 1946, he saw Lagata in the nursery guarding six prisoners.
(53-54). The prisoners were just within the premises of the nursery just beyond the mango tree. Lagata was about seven meters from them and he
was looking at them all the time. The place was grassy. The grass was about half a meter tall. (55). The ground near the hill was covered with cogon
and talahib. By the height they could cover a man in standing position. The witness heard about the disappearance of prisoner Epifanio Labong. At
the time, the witness was already far, because he had to attend to several laborers detained at the capitol building. When he returned from the
capitol building, he was informed that Epifanio Labong disappeared. (57-59). The witness did not hear any gun shot explosion in the nursery. He saw
the accused guarding the prisoners at about 8:00 o'clock in the morning. (60). The witness stayed in the nursery until about 8:30, when he came to
the capitol building. (61).

2. Ignacio Lagata, 27, married, Catbalogan. — On October 3, 1946, he accompanied the six prisoners from the provincial jail to the plaza of the
provincial capitol. He remained there until 10 o'clock in the morning, when he told them to return to the provincial jail. The six prisoners requested
him to allow them to get some gabi in the nursery. Lagata went with them to a spot around the mango tree. (63-64). The grass in the place was
knee-high. Lagata was under a mango tree about five meters from the prisoners. He was watching all of them. They were scattered back, Epifanio
Labong took advantage and escaped. "I did not discover that but when I called them to assemble I found out that one missing. I asked the rest of the
prisoners as to where Epifanio Labong was. I told the prisoners to go to that spot. We went there and the prisoners were ahead because they know
the place. (66). When we arrived at the place, we did not see Labong and Tipace called our attention telling us that this is the place through which
Epifanio Labong passed." The witness did not see the track of Epifanio Labong but the prisoners, however, were the ones who indicated to him the
place through which Epifanio Labong passed. "I followed them. Up to above the national highway. When we reached up the place another prisoner
called also our attention telling us that here is the place through which Labong passed and so went up. When we reached above, they were already
far from here. So I told them to stop because they were already far from me. They did not heed my order to stop. Then I fired up to the air. They
scattered. I could only see two of them I also saw one of them running towards the mountain. So I fired at him." It was Eusebio Abria, and he was at
about five meters from him. "He was going up the mountain. After I fired at Eusebio Abria, I saw him running. I just left him because I was looking for
the rest. I saw also Ibanez running. He was running towards me and then around me. I called his attention and told him to stop from running or else
lie down and give up your arm. He did not heed my order. I fired at him." (67-69). The witness saw Ibanez running before him towards the south
road. He was Tipace. One minute elapsed from the time the witness fired at Abria to the time he fired at Ibañez. The witness fired at them because
he sympathizes with other policemen from whom other prisoners escaped. (70). "Because if it so happened that a prisoner escaped under my
custody, I would be the one to be put in jail and if I cannot fire at him, I will be the one to be put in jail. "The truth is that they ran away." At the time
he fired at Tipace and Abria, they were running away. (71). "What was in my mind was that if I could overtake them and not fire at them, I would
meet the same situation as what other guards met under whose custody prisoners escaped and some of them were discharged from their duty."
Ibanez testified against the accused because the latter fired at his father-in-law. (72). One day, the accused maltreated Ibanez. He slapped him two
times. He was the only prisoner he slapped. (73). At the time they were looking for Labong, the prisoners were walking in line one meter from one to
another. The accused was near them. (77). When he fired at Abria, the latter was about five meters from him and when he fired at Tipace, the latter
was four meters from him. At the time, Tipace was running side-wise to the accused and he could see where the accused was. His face was facing
the accused. (78). When he fired at Abria, he lost hope to recover Labong. "I was hopeless already." (80) The picking up of gabi was not part of the
work of the prisoners. (81).

Appellant was charged with murder, serious physical injuries and evasion through negligence in three separate cases which have been tried
jointly.Finding him guilty, the trial court sentenced him as follows:

(a) For Murder (Case No. 809) — Reclusion Perpetua with civil interdiction for life and perpetual absolute disqualification, indemnify the heirs of
Ceferino Tipace Two Thousand Pesos (2,000) and pay the costs of this action

(b) For serious physical injuries (Case No. 810) — An indeterminate imprisonment of two (2) year and four (4) month as minimum to four (4) year
nine (9) month and ten (10) days of prison correccional as maximum and pay the cost of this action; and

(c) For evasion through negligence (Case No. 811) — An indeterminate imprisonment of two (2) months one (1) day of arresto mayor as minimum to
one (1) year one (1) month and ten (10) days of prison correccional and pay the costs, (p. 45, rec.)

The evidence is conclusion to the effect that the escape of prisoner Epifanio Labong was due to the negligence of the appellant. The six prisoner
were supposed to work in the plaza of the provincial capitol and to return to jail after said work but appellants allowed them instead to go to the
nursery to gather gabi without any apparent authority to do so.

Considering that the place was grassy and tall talahib was growing therein the height of which could conceal persons in standing position appellant
must have seen immediately that it was a choice place for any prisoner that may want to escape. Such negligence of appellant is punishable under
article 224 of the Revised Penal code, and the penalty imposed by trial court is in accordance with law.

As regards the shooting of Abria and Tipace we are convinced that the facts were as narrated by the witnesses for the prosecution. Abria was shot
when by the witnesses for then prosecution. Abria was shot when he was onlythree meter away from appellant and the latter has not even shown
that Abria attempted to escape. Tipace was also shot when he was about four or fivemeter away from appellant. The latter's allegation that Tipace
was running — conveying the idea that said prisoner was in the act of escaping — appears to be inconsistent with his own testimony to the effect
that Tipace was running sidewise with his face looking towards appellant andwith the undisputed fact that Tipace was hit near one axilla, the bullet
coming out from the opposite shoulder. If Tipace's purpose was to escape the natural thing for him to do would have to give his back to appellant.

The criminal responsibility of appellant regarding the killing of Tipace can be exacted from him on the basis of his own testimony. The way he fired at
Tipace ( whom he misnamed first as Ibañez) is described by appellant in the following words:.

He was running towards me and then around me.

I called his attention and told him to stop from running or else lie downand give up your arm. He did not heed my advice.

Inasmuch as he did not heed my advised so I fired at him.

His direction while he was running not exactly towards me but running in front of me to the left side. (69).
Explaining his reason for firing at Abria and Tipace, appellant gave the following reason: "Because I sympathize with the other policeman from whom
prisoners escaped." (70). "If it so happened that a prisoner escaped under my custody, I would be the one to be put in jail and if I cannot fire at him I
will be the one to be put in jail." (71). (Emphasis ours)

It is clear that Lagata had absolutely no reason to fire at Tipace. Lagata could have fired at him in self defense or if absolutely necessary to avoid his
escape. The record does not show that Tipace was bent on committing any act of aggression "he was running towards and then around me".
(Emphasis ours) How could anyone in his senses imagine that Tipace intended to escape by running towards and around the very guard he was
supposed to escape from?

There is no question that the escape of Labong scared appellant according to him because of the experience of other guard who were dismissed
from office or even prosecuted because of prisoners who had escaped under their custody and that it was his duty to fire against the prisoner if he
wanted to be exempt from any responsibility. Even if appellant sincerely believe, althougherroneously that in firing the shots be acted in the
performance of his official duty the circumstances of the case show that there was no necessity for him to fire directly against the prisoners so as
seriously wound one of them and kill instantaneously another. While custodians of prisoners should necessity would authorize them to fire against
them. Their is the burden of proof as to such necessity. The summary liquidation of Prisoner under flimsy pretexts of attempts of escape, which has
been and is being practiced in dictatorial system of government has always been and is shocking to the universal conscience of humanity.

Human life is valuable albeit sacred. Cain has been the object of unrelentlesscurse for centuries and millennia and his name will always be
remembered in shame as long as there are human generation able to read the Genesis. Twenty centuries of Christianity have not been enough to
make less imperative the admonition that Thou shall not kill," uttered by greatest pundit and prophet of Israel. Laws constitution world charters
have been written to protect human life. Still it is imperative that all men be imbued with spirit of the Sermon on the Mount that the words of the
gospels be translated into reality and that their meaning fill all horizon with the eternal aroma of encyclical love of mankind.

As recommended by the prosecuted appellants is entitled to the benefit of the mitigating circumstance of incomplete justifying circumstance in
paragraph5 of Article 11 of the Revised Penal Code. Consequently appellant shouldbe sentenced for homicide to an indeterminate penalty of six
years andone day of prision mayor to twelve years and one day of reclusion temporal and in the case of serious physical injuries to an indeterminate
penalty of four months and one day of arresto mayor to two years, four months and one day of prision correccional.

Modified as above stated the appealed decision is affirmed with costs against appellant.

Feria, Briones, Tuason and Reyes JJ., concur.

Moran, C.J., concurs in the result.
EN BANC
G.R. No. L-47521 April 8, 1941
PEDRO REMOCAL, Petitioner, vs. THE PEOPLE OF THE PHILIPPINES, Respondent.

MORAN, J.:

On May 5, 1939, between 12 and 3 p.m., one Fernando Tolentino, a prisoner in the municipal jail of Guimba, Nueva Ecija, requested the petitioner
Pedro Remocal, the only police officer on duty, to allow him to go to the toilet for personal necessity. The request was granted and petitioner
unlocked the jail and let the prisoner out for the toilet. Thereafter, when petitioner was about to lock up back the prisoner, the latter asked again
permission to fetch water from a nearby well. Petitioner told him to wait for another policeman, and at this juncture the telephone rang repeatedly.
Petitioner, instead of locking up back the prisoner in jail, told the latter to keep close to him while he answered the telephone call. The latter, taking
advantage of the situation, ran away and escaped.chanroblesvirtualawlibrary chanrobles virtual law library

The sole question is whether, upon the aforecited facts, petitioner may properly be held guilty of negligence in the custody of the escaped
prisoner.chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner contends that his order to the prisoner to keep close to him while he was answering the telephone call was sufficient precaution under
the circumstances. We do not agree with this view. The adequate precaution which should have been taken by him was to have locked up the
prisoner before answering the telephone call. There was nothing in that call necessitating preference to petitioner's official duty of locking up back
the prisoner in jail postponing the answer to such call was safest way.chanroblesvirtualawlibrary chanrobles virtual law library

Judgment is affirmed, with costs against petitioner.chanroblesvirtualawlibrary chanrobles virtual law library

Imperial, Diaz, Laurel, and Horrilleno, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-58652 May 20, 1988
ALFREDO RODILLAS Y BONDOC, petitioner
vs.
THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This is a petition brought by Alfredo Rodillas y Bondoc asking for the reversal of a decision of the Sandiganbayan which found him guilty beyond
reasonable doubt of the crime of Infidelity in the Custody of Prisoner Thru Negligence (Art. 224, RPC). The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered finding accused Alfredo Rodillas y Bondoc GUILTY beyond reasonable doubt as principal in the crime of
Evasion through Negligence, as defined and penalized under Article 224 of the Revised Penal Code, and there being no modifying circumstance to
consider, hereby sentences him to suffer the straight penalty of FOUR (4) MONTHS and ONE (1) DAY of arresto mayor, to suffer eight (8) years and
one (1) day of temporary special disqualification and to pay the costs of this action.

SO ORDERED. (Rollo, p. 30)

Petitioner Rodillas was charged with having committed the said crime in an information which reads as follows:

That on or about the 27th day of March, 1980, in the City of Caloocan, Philippines, and within the jurisdiction of this Honorable Court, said accused,
being then a policeman duly appointed and qualified as such, hence a public officer, specially charged with the duty of keeping under his custody
and vigilance and of conducting and delivery from the City Jail, Caloocan City to the Court of First Instance, Branch XXXIV, Caloocan City and return,
one Zenaida Sacris Andres, a detention prisoner being tried for violation of Section 4, R.A. No. 6425, otherwise known as the Dangerous Drugs Act of
1972, under Crim. Case No. C-12888, did then and there with great carelessness and unjustifiable negligence, allow and permit said Zenaida Sacris
Andres to have snacks and enter the comfort room at the second floor of the Genato Building, Rizal Avenue, Caloocan City after the hearing of said
case, v,,ithout first ascertaining for himself whether said comfort room is safe and without any egress by which the said detention prisoner could
escape, thereby enabling said Zenaida Sacris Andres, to run away and escape thru the window inside the comfort room, as in fact she did run away
and escape from the custody of said accused.

CONTRARY TO LAW. (Rollo, p. 6)

The prosecution's evidence upon which the court based its finding of guilt is summarized as follows:

... accused herein is a Patrolman of the Integrated National Police Force of Caloocan City and assigned with the jail section thereof. On March 27,
1980, when he reported for work, he was directed by his superior, Corporal Victor Victoriano, officer-in-charge in assigning police officers to escort
prisoners, to escort Zenaida Sacris deadline Andres, a detention prisoner, before the sala of Judge Bernardo Pardo of the Court of First Instance,
Br.XXXIV, located at the Genato Building, Caloocan City, to face trial for an alleged Violation of the Dangerous Drugs Act of 1972, as the
policewoman officer who was supposed to escort the said detainee was then sick. He and the detainee proceeded to the court building and arrived
thereat between 8:30 and 9:00 o'clock in the morning. while waiting for the arrival of the judge at the courtroom, Pat. Orlando Andres, who
happened to be in the court and a relative of the husband of said detention prisoner Zenaida, approached the accused and requested the latter if he
could permit Zenaida to talk to her husband. The accused consented and Zenaida Andres had a short talk with her husband. After a short while, the
presiding judge deferred the decision against her because of a new Presidential Decree revising some provisions regarding violations of the
Dangerous Drugs Act.

After the court had already adjourned, the husband of Zenaida requested the accused to allow them to have lunch as they were already very
hungry. He consented to the request and they proceeded to the canteen located at the mezzanine floor of the court building (Exhibit
1).<äre||anº•1àw> He took a seat beside Zenaida and Pat. Andres while the relatives of said detainee were seated at a separate table. While eating,
the husband of Zenaida asked him if he could accompany his wife to the comfort room as she was not feeling well and felt like defecating. The
accused accompanied Zenaida and a lady companion to the ladies' comfort room located at the second floor of the building (Exibit 2). Zenaida and
her lady companion entered the comfort room, while he stood guard along the alley near the ladies' comfort room facing the door thereof (Exhibit
5). Not long after, the lady companion of Zenaida came out of the comfort room and told him that she was going to buy sanitary napkins for Zenaida
as the latter was then bleeding and had a menstruation and could not go out of the comfort room.

After ten minutes elapsed without the lady companion of Zenaida coming back, the accused became suspicious and entered the comfort room. To
his surprise, he found Zenaida no longer inside the comfort room. He noticed that the window of said comfort room was not provided with window
grills. He tried to peep out of the window by stepping on the flush tank which is just about 3 feet from the window and noticed that outside of the
window there was a concrete eave extending down to the ground floor of the building which he presumed that Zenaida might have used as a
passage in escaping (Exhibits 2-A, 3 and 4 to 4-C). He immediately went out to look for the escapee inside the building with the help of Pat. Andres
but they were not able to see her. Pat. Andres advised him to go to Zenaida's house as she might be there, which home is located at Bagong Barrio,
Caloocan City. Pat. Andres having told him that the husband of the escapee is from Rizal, Nueva Ecija, the accused borrowed the car of his brother-
in-law and proceeded to said town. Upon arrival thereat, they contacted the relatives of Zenaida and asked for information as to her whereabouts,
but they answered in the negative. They went back to Caloocan City and went again directly to Bagong Barrio to the house of Zenaida, arriving
thereat at around 8:00 o'clock in the evening. While at the residence of Zenaida, Cpl. Victoriano arrived and the accused related to him about the
escape of Zenaida. He formally reported the matter of his superior officer at the City Jail Capt. Leonardo Zamora. The accused declared further that
as a jailer, he never had any training nor lecture by his superiors regarding the manner of delivering prisoners. However, he admitted that he did not
inspect first the comfort room before he allowed Zenaida to enter because there were many females going in and out of said comfort room, and
that he did not promptly report the escape earlier because they were then pressed for time to intercept Zenaida at the highway. (Rollo, pp. 18-21).

The petitioner assigns the following errors:

WHETHER PETITIONER'S CONVICTION BY THE SANDIGANBAYAN BASED ONLY ON HIS ADMISSIONS WITHOUT THE PROSECUTION HAVING
PRESENTED EVIDENCE TO PROVE HIS NEGLIGENCE WILL LIE.
II

WHETHER THE ACTS OF PETITIONER COULD BE QUALIFIED AS DEFINITE LAXITY AMOUNTING TO DELIBERATE NON-PERFORMANCE OF DUTY TO
SUSTAIN HIS CONVICTION. (Brief for the petitioner, p. 5)

In essence, the sole question to be resolved in the case at bar is whether, under the foregoing facts and circumstances, the respondent
Sandiganbayan committed a reversible error in holding the petitioner guilty of infidelity in the custody of a prisoner through negligence penalized
under Art. 224 of the Revised Penal Code.

The petitioner specifically alleges that his conviction by the Sandiganbayan was based merely on his admissions without the prosecution presenting
evidence to prove his negligence.

Sec. 22, Rule 130 of the Rules of Court states that "the act, declaration, or omission of a party as to a relevant fact may be given in evidence against
him. The admissions and declarations in open court of a person charged with a crime are admissible against him. (See U.S. v. Ching Po, 23 Phil. 578).

The records show that the elements of the crime for which the petitioner was convicted are present. Article 224 of the Revised Penal Code states:

ART. 224. Evasion through negligence. If the evasion of the prisoner shall have taken place through the negligence of the officer charged with the
conveyance or custody of the escaping prisoner, said officer shall suffer the penalties of arresto mayor in its maximum period to prision correccional
in its minimum period and temporary special disqualification.

The elements of the crime under the abovementioned article are: a) that the offender is a public officer; b) that he is charged with the conveyance
or custody of a prisoner, either detention prisoner or prisoner by final judgment; and c) that such prisoner escapes through his negligence (See
Reyes, L.B., Revised Penal Code, Book II, 1977 ed., p. 407).

There is no question that the petitioner is a public officer. Neither is there any dispute as to the fact that he was charged with the custody of a
prisoner who was being tried for a violation of the Dangerous Drugs Act of 1972.

The only disputed issue is the petitioner's negligence resulting in the escape of detention prisoner Zenaida Andres. The negligence referred to in the
Revised Penal Code is such definite laxity as all but amounts to a deliberate non-performance of duty on the part of the guard (Id., p. 408).

It is evident from the records that the petitioner acted negligently and beyond the scope of his authority when he permitted his charge to create the
situation which led to her escape. The petitioner contends that human considerations compelled him to grant Zenaida Andres requests to take lunch
and to go to the comfort room to relieve herself.

As a police officer who was charged with the duty to return the prisoner directly to jail, the deviation from his duty was clearly a violation of the
regulations.

In the first place, it was improper for the petitioner to take lunch with the prisoner and her family when he was supposed to bring his charge to the
jail. He even allowed the prisoner and her husband to talk to each other at the request of a co-officer.

It is the duty of any police officer having custody of a prisoner to take necessary precautions to assure the absence of any means of escape. A failure
to undertake these precautions will make his act one of definite laxity or negligence amounting to deliberate non-performance of duty. His tolerance
of arrangements whereby the prisoner and her companions could plan and make good her escape should have aroused the suspicion of a person of
ordinary prudence.

The request for lunch and the consequent delay was an opportunity for the prisoner to learn of a plan or to carry out an earlier plan by which she
could escape. The plan was in fact carried out with the help of the lady who accompanied his prisoner inside the comfort room. The use of a toilet is
one of the most familiar and common place methods of escape. It is inconceivable that a police officer should fall for this trick. The arrangement
with a lady friend should have aroused the petitioner's suspicion because the only pretext given by the petitioner was that she was going to answer
the call of nature. It was, therefore, unnecessary for her to be accompanied by anyone especially by someone who was not urgently in need of a
toilet if the purpose was merely to relieve herself. Despite this, the petitioner allowed the two to enter the comfort room without first establishing
for himself that there was no window or door allowing the possibility of escape. He even allowed the prisoner's companion to leave the premises
with the excuse that the prisoner was having her monthly period and that there was a need to buy sanitary napkins. And he patiently waited for
more than ten minutes for the companion to return. This was patent negligence and incredible naivette on the part of the police officer.

Contrary to what the petitioner claims, the escape was not a confluence of facts and,circumstances which were not foreseen and were not
unnatural in the course of things. Not only should they have been foreseen but they should have been guarded against.

Considering that the city jail was only a kilometer away and it was only 11:30 a.m., it would not have been inhuman for the petitioner to deny the
prisoner's request to first take lunch. Neither would it have been inhuman if he cleared the toilet of female occupants and checked all possible exists
first and if he did not allow the lady companion to go with Zenaida Andres to the comfort room. These human considerations, however, are
immaterial because the fact remains that as a police officer, he should have exercised utmost diligence in the performance of his duty.

The supposed confluence of facts does not alter his liability. That he was not trained in escorting women prisoners is likewise unacceptable as there
are no hard and fast rules of conduct under all conceivable situations for police officers acting as guards. However, they are expected to use
prudence, diligence, and common sense. That Judge Pardo did not immediately pronounce judgment so the petitioner could have immediately
brought Zenaida back to jail is inconsequential. In the first place, the escape would not have materialized had he immediately escorted her back to
jail after the hearing. That he cannot follow the prisoner inside the comfort room because it would create a commotion, he being a male, is a lame
excuse. There is nothing wrong in asking the ladies for permission so he could check the comfort room first to insure that the prisoner cannot
escape. The fact that the building is made of concrete and the outside windows covered with grills should not make a police officer complacent
especially because well-planned escapes are not uncommon. Escapes are, in fact, even presumed so much so that two (2) guards are usually
assigned to a prisoner. (Tsn, August 4, 1981, p. 40)

There appears to have been no genuine effort on the part of the petitioner to recapture the escapee. Instead of promptly reporting the matter so
that an alarm could immediately be sent out to all police agencies and expert procedures followed, he allegedly tried to look for her in the latter's
house in Caloocan and failing in this, proceeded to Nueva Ecija. It was only later in the evening that he formally reported the matter to his superior.
This even gave the escapee greater opportunity to make good her escape because the chances of her being recaptured became much less. Such
action requires concerted police effort, not a one-man job which petitioner should have been or was probably aware of.
The petitioner further contends that he cannot be convicted because there was no connivance between him and the prisoner. In support of his
claim, he cites the case of Alberto v. dela Cruz, (98 SCRA 406). The citation, however, is erroneous. It creates the impression that for one to be held
liable under Art. 224, there must be a showing that he first connived with the prisoner. This was not the ruling in said case. Conniving or consenting
to evasion is a distinct crime under Art. 223 of the Revised Penal Code.

The petitioner here is not being charged with conniving under Art. 223 but for evasion through negligence under Art. 224 of the same Code. It is,
therefore, not necessary that connivance be proven to hold him liable for the crime of infidelity in the custody of prisoners.

We quote the Solicitor General that the Sandiganbayan's observation regarding escaped prisoners is relevant and timely. The Court stated:

It is high time that the courts should take strict measures against law officers to whom have been entrusted the custody and detention of prisoners,
whether detention prisoners or prisoners serving sentence. Laxity and negligence in the performance of their duties resulting in the mysterious
escapes of notorious criminals have become common news items, involving as it does the suspicion that monetary considerations may have entered
into the arrangements which led to the successful escape of such notorious criminals even from military custody. No quarters should be extended to
such kind of law officers who, deliberately or otherwise, fail to live up to the standard required of their duties, thus directly contributing not only to
the clogging of judicial dockets but also to the inevitable deterioration of peace and order. (Brief for Respondents, pp. 17-18)

WHEREFORE, the petition is hereby DISMISSED. The questioned decision of the Sandiganbayan is AFFIRMED.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, and Griño-Aquino, JJ., concur.
[ G.R. No. 18688, February 10, 1923 ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. EUSEBIO C. CAMACHO, DEFENDANT AND APPELLANT.

DECISION
OSTRAND, J.:

This is an appeal from a judgment of the Court of First Instance of Pangasinan convicting the defendant of the crime of unfaithfulness in the custody
of public documents, and sentencing him to suffer one year, eight months and twenty-one days of prision correccional, with the corresponding
accessory penalties prescribed by law, to pay a fine of 325 pesetas, with subsidiary imprisonment in case of insolvency, and with disqualification for
public office for the term of eleven years and one day.
The information alleges "that on or about the 30th day of June, 1920, in the town of Bayambang, Province of Pangasinan, the municipal treasurer of
said municipality sent by means of a messenger to the herein accused, Eusebio C. Camacho, as municipal president, for his examination, certification
and signature, the municipal pay roll of said municipality for the payment of the salaries due the municipal functionaries and employees for the
month of June, 1920, and that said accused, upon obtaining possession of said public document, voluntarily, illegally, and criminally put aside,
concealed and destroyed said document, which had been entrusted to him by reason of his office, with the purpose of not paying or reimbursing a
certain sum for which he was in duty bound to reimburse the municipal treasury, said sum consisting in per diems illegally collected, with grave
injustice to the public interests as well as to the persons interested in said municipal pay roll, in violation of article 360 of the Penal Code."

The evidence shows that the municipal pay roll alleged to have been destroyed was prepared in the office of the municipal treasurer and that the
clerk who prepared it took it to the office of the accused, as municipal president, for his approval. The roll was not signed or certified to by any of
the officials whose signatures were required before payments of salaries could be hgally made, but it appears that notwithstanding this fact the
municipal treasurer had already paid the salary of the municipal secretary when the roll was presented to the president for approval.

As to what occurred in the office of the president when the pay roll was shown to him, the evidence is conflicting. That of the prosecution is to the
effect that the president, upon being handed the roll, became angry because it was accompanied by a memorandum requiring him to reimburse the
municipality for the sum of P33 alleged to have been overdrawn by him by way of per diem allowances, and that he therefore tore the roll into
pieces. The defendant denies that any demand was made upon him for a reimbursement or that he, for that reason, destroyed the pay roll.

The witnesses for the defense, among them the clerk who prepared the pay roll and brought it to the president for approval, testify that the
president, upon ascertaining that the municipal secretary had already been paid, notwithstanding the fact that the pay roll had not been approved
and that no deductions had been made for alleged absences, manifested his displeasure therewith and told the municipal secretary that he would
not approve the roll; that the secretary, who appeared to be intoxicated, then became incensed and attempted to take the pay roll away from the
president, and that in the ensuing struggle the pay roll was torn.

It appears from the record that there was considerable ill-feeling between the president and the secretary due to political rivalry and that the
treasurer also was hostile to the president. In view of the fact that no deduction was made upon the pay roll for the P33 alleged to have been
overdrawn by the president, the reason given by the prosecution for the destruction of the pay roll does not appear very probable and considering
the enmity existing between the parties it seems more likely that the president, finding that the salary of the secretary had been paid without his
approval, felt that he and his office had been slighted by the treasurer and that, losing control of his temper, he, and not the municipal secretary,
was principally responsible for the damage to the roll.

But from the point of view we take of the case, the facts in dispute are not of controlling importance in its final determination and the result will be
the same whether we adopt the version given by the witness for the prosecution or whether we accept that of the defense.

The alleged public document, with the destruction of which the defendant is charged, is in the evidence before us. It consists of a printed blank form
called "Municipal Pay Roll" filled in with the names of the municipal officials and employees to whom salaries were due, together with their
designations and the amounts due them. At the foot of each page there is a blank space for its approval by the municipal president and in addition
thereto the following form for a certificate appears:

"I hereby certify on my official oath that the above Pay Roll is correct and that the services have been duly rendered as stated.

_____________________________
(as to office of President and police force).
(Municipal President)

_____________________________
(as to office of Secretary).
(Municipal Secretary)

_____________________________
(as to office of Treasurer).
(Municipal Treasurer)

_____________________________
(as to office of ________)"
Neither the certificate nor the space for the approval of the roll have been signed. The only signature on the roll is that of "A. Garcia" appearing by
way of receipt for the salary of the municipal secretary. In the absence of the approval of the president, the payment of that salary was contrary to
law (Administrative Code, sec. 2300), and being thus completely unauthorized, neither the payment nor the receipt therefor, nor the signature
signifying such receipt can be considered of official character. In that incomplete state of the pay roll, the signature "A. Garcia" had no legitimate
place thereon and for the purpose of determining the character of the instrument may be entirely disregarded.

A document is a writing or instrument by which a fact may be proven and affirmed (2 Escriche Dic. de Leg. y Jurisprudencia, 714). The writing here in
question proves nothing and confirms nothing; it is not a document but merely a draft of one. Until approved or certified to by one or more of the
proper officials, it would not be entitled to filing in any public office or archive and might be disapproved or even destroyed by the official whose
approval was necessary to give it effect, without giving rise to criminal liability on his part.

The Attorney-General, in his brief, cites the case of United States vs. Asensi (34 Phil., 750), as authority for the contention that the writing in
question is a public document. It is true that in a dictum in the decision in that case the court, citing United States vs. Carrington (5 Phil., 725), said
"We have also held that the blank forms prepared by the Auditor of the Philippine Islands, in accordance with Act No. 90 of the Philippine
Commission, are public documents." An examination of the Carrington case shows that what the court there held, and what it evidently meant to
say in the Asensi case, was that documents executed on blank forms prepared by the Auditor of the Philippine Islands in accordance with Act No. 90
of the Philippine Islands, are public documents. To hold that a mere blank in itself alone is a public document would lead to the absurdity that a
person might be criminally prosecuted under article 360 of the Penal Code for the destruction of a printed blank form containing no other writing
whatever. (For a discussion of what constitutes a public document within the meaning of the Penal Code, see sentence of the supreme court of
Spain of May 27, 1882.)

Counsel for the defendant argues that there in the present case was no destruction of the alleged document in so far as it, with slight repairs, might
have been made serviceable. There is some force in this contention, but, in view of our conclusions as to the character of the writing, the point need
not be discussed.

For the reasons stated, the judgment appealed from is reversed and the defendant will stand acquitted of the offense charged in the information. So
ordered.

Araullo, C.J., Malcolm, Avanceña, Villamor, Johns, and Romualdez, JJ., concur.
Street, J., concurs in the result.
EN BANC
G.R. No. L-19676 February 7, 1923
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, vs. GERARDO AGNIS, Defendant-Appellant.

ROMUALDEZ, J.:

While the accused was on May 9, 1921, discharging the function of his office as postmaster of the town of Dipolog, Zamboanga, a C.O.D. package
arrived at the post-office from the "Little Leather Library" of New York, addressed to R. Vic. Oliva. The accused notified the sendee several times, but
the latter could not make the required payment in accordance with the nature of the correspondence, and asked him to advance the amount and to
retain it until he could reimburse him. The accused retained the package without paying for it, and about July 28th of that year, he opened the
package which proved to contain printed pamphlets which he carried to his house to show them to his sister.chanroblesvirtualawlibrary chanrobles
virtual law library

At the inspection of that office on the 30th day of that month of July, the officer who made the inspection, Eugenio de Mesa, learned that there was
such correspondence in that post-office, but that the package was not in the safe where it should have been kept. Asked as to the whereabouts of
the package, the defendant brought it to the office by order of the inspector, saying that he had carried it to his house to show to his sister the
pamphlets contained therein. The rules of the post-office as to correspondence of such a nature are to the effect that if a C.O.D. matter is not
claimed and paid for by the sendee within sixty days from receipt, it must be returned to the sender.chanroblesvirtualawlibrary chanrobles virtual
law library

If the pamphlets in question can be considered as the documents or papers contemplated in article 360 of the Penal Code, the application to the
case now before us of this legal provision would be obvious. This court in the case of United States vs. Orera (11 Phil., 596), defined the terms
"documents" or "papers" employed in said article 360 of the Penal Code, as: "A deed, instrument or other duly authorized paper by which
something is proved, evidenced or set forth," ... "every deed or instrument executed by a private person, without the intervention of a public notary
or of other person legally authorized, by which document some disposition or agreement is proved, evidenced or set forth," ... ."chanrobles virtual
law library

The pamphlets in question cannot be said to evidence a fact, agreement or disposition. They are rather merchandise as any other article usually sent
by C.O.D. mail. For this reason we think that the act complained of does not come within the sanction of said article 360 of the Penal
Code.chanroblesvirtualawlibrary chanrobles virtual law library

Neither is section 1952 of the Administrative Code, in connection with 2757, subsection ( e), of said Code applicable to it, nor is article 362 of the
Penal Code, because it does not appear from the evidence that the package in question was closed; on the contrary it appears that it could be
opened on one end.chanroblesvirtualawlibrary chanrobles virtual law library

Nor can the act complained of be held to constitutes theft, since it is not alleged in the information, nor was it proven, that the accused took the
package with intent of gain.chanroblesvirtualawlibrary chanrobles virtual law library

These are in substance the remarks of the Attorney-General, which we find correct, wherefore said officer recommends the dismissal of the case
and the acquittal of the defendant.chanroblesvirtualawlibrary chanrobles virtual law library

We find this petition to be well grounded, and that judgment appealed from is hereby reversed and the appellant acquitted with the costs de oficio.
So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand, and Johns, JJ., concur.
EN BANC
G.R. No. L-10433 August 7, 1915
THE UNITED STATES, Plaintiff-Appellee, vs. JOSE R. GOROSPE, Defendant-Appellant.

JOHNSON, J.:

On the 17th of September, 1914, a complaint was presented against the defendant in the court of the justice of the peace of the pueblo of
Pozorrubio, charging him with the crime of faithfulness in the custody of documents. The defendant was arrested and taken before the justice of the
peace for a preliminary investigation. The justice of the peace, at the close of the preliminary investigation, found that there was probable cause for
believing that the defendant was guilty of the crime charged and held him for trial in the Court of First Instance.chanroblesvirtualawlibrary
chanrobles virtual law library

On the 13th day of October, 1914, the prosecuting attorney of the Province of Pangasinan presented a complaint against the defendant, charging
him with the crime of faithfulness in the custody of documents. The complaint alleged:

The said accused, Jose R. Gorospe, in or about the month of July, 1914, in the municipality of Pozorubbio, of the Province of Pangasinan, he then
being the postmaster of the said municipality, duly appointed and qualified to act as such, did willfully, maliciously, and criminally remove from a
letter addressed by Manuel Venezuela to the commercial firm called La Fortuna, at No. 360 Calle Santo Cristo, Binondo, Manila, and mailed, on the
13th of the said month of July, 1914, in the post of the aforementioned municipality of Pozorrubio, which was in charge of the accused, Jose R.
Gorospe, postal money order No. 1570, inclosed in said letter, drawn for one hundred and fifty pesos (P150) and issued by the said accused, Jose R.
Gorospe, in favor of the commercial firm La Fortuna on the date aforesaid of July 13, 1914, after he had received from the said Manuel Venezuela
the aforementioned sum of one hundred and fifty (P150) for its remittal to the said commercial firm La Fortuna; and that the accused afterwards did
appropriate to himself the said sum of one hundred hundred and fifty pesos (P150) and did, for this purpose, sign at the foot of the said postal
money order the Christian name and the surname of Manuel Venezuela; which acts have caused serious damage and harm to the said Manuel
Venezuela and to the public weal and constitute the said crime of faithfulness in the custody of documents, committed within the jurisdiction of this
Court of First Instance and in violation of the law.

Upon said complaint, the defendant was arrested, arraigned, tried, found guilty of the crime charged, and sentenced by the Honorable Julio
Llorente, judge, to be imprisoned for a period of eight years and one day of prision mayor, to pay a fine of 1,000 pesetas, to suffer the subsidiary
imprisonment provided for by the law, and to indemnify the offended person in the sum of P150, and to pay the costs.chanroblesvirtualawlibrary
chanrobles virtual law library

The sentence of the lower court further disqualified the defendant from holding the office of postmaster, or any other analogous office, for a period
of eleven years and one day. From that sentence the defendant appealed to this court and made several assignments of error. The assignments of
error relate principally to the sufficiency of the evidence to show that the defendant was guilty of the crime charged. The appellant also alleges that
the penalty imposed by the lower court was in conformity with the law.chanroblesvirtualawlibrary chanrobles virtual law library

After a careful examination of the evidence brought to this court, we are of the opinion that the finding of facts made by the lower court is a true
and faithful relation of the facts proved. They are as follows:

On July 13, 1914, Manuel Venezuela secured a postal money order for $75 in United States currency, made out to and in favor of the commercial
firm La Fortuna, of Manila. The postmaster, who was the accused, issued the receipt for this order. Manuel Venezuela put the postal money order,
together with his letter addressed to La Fortuna, inside an envelope which, properly sealed, he delivered to the postmaster to be forwarded by him.
As Manuel Venezuela received no acknowledgment of receipt of the order, he called on the postmaster and the latter advised him to write to the La
Fortuna and inquire whether this firm had received it. The said firm replied that it had received no such order. Then Manuel Venezuela again called
on the accused and the latter promised him that he would try to secure authorization from the Director of Posts at Manila to issue to the sender a
new money order or to return him the amount paid in. On August 29, 1914, the accused advised Venezuela that the authorization for the issuance of
a new order or the return of the P150 has already arrived. As the postmaster, according to his statement, had on hand no more than P75 or P80,
Manuel Venezuela would not receive this amount. The accused told him to return on Monday, because on that day he, Gorospe, would be able to
make up the sum. The offended party had to go on that day to Magaldan, as one of his children was sick; but from there made complaint directly to
the head office of the Bureau of Posts, at Manila. The proper investigation of the case was made and the postal money order, Exhibit E, signed by
Manuel Venezuela, was found in the post office in charge of the accused. The offended party denied having signed the said order. The accused
presented three witnesses who testified that they had seen Manuel Venezuela sign it; notwithstanding, upon comparing with each other the
documents Exhibit E, Exhibit C, and Exhibit F, it is seen that the signatures of the Exhibits C and F, which are the unquestionable signatures of the
offended party, are entirely different from the signature that appears at the foot of the Exhibit E. A simple inspection is enough to convince one of
this. Furthermore there is no satisfactory explanation as to how the postal money order came to be in the possession of the offended party when, as
he testified, and in this he was not contradicted, he delivered the said order, together with the letter addressed to La Fortuna, to the accused
himself. The court believes that the accused is guilty of the crime charged.

The foregoing facts clearly show that the defendant, as postmaster of the municipality of Pozorrubio, is guilty of the crime charged in the complaint,
to wit, faithlessness in the custody of documents, and should be punished in accordance with the provisions of article 360 of the Penal Code. (U.S.
vs. Mari�o, 10 Phil. Rep., 652; U.S. vs. Pe�a, 12 Phil .Rep., 362; U.S. vs. Filoteo, 14 Phil. Rep., 73; U.S. vs. Misola, 14 Phil. Rep., 142; U.S. vs. De Toro,
15 Phil. Rep., 181; U.S. vs. Balilo, 17 Phil. Rep., 459.)chanrobles virtual law library

We find that the lower court committed no error in fixing the penalty. (U.S. vs. Mari�o, 101 Phil. Rep., 652, 659.)chanrobles virtual law library

After a careful consideration of the entire record brought to this court in relation with the assignments of error, we find no reason for modifying the
conclusions or sentence of the lower court. The same is therefore hereby affirmed, with costs. So ordered.

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