criminal cases

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Republic of the Philippines Supreme Court Manila

That on or about the 7 day of October 1998, in the City of Parañaque, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge of the complainant [AAA], a mental retardate, against her will and consent.

FIRST DIVISION PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 168932 Present:

-versus-

CHARLIE BUTIONG, Defendant-Appellant.

CORONA, C.J., Chairperson, LEONARDO-DE CASTRO, BERSAMIN, DEL CASTILLO, and VILLARAMA, JR., JJ. Promulgated: October 19, 2011

x-----------------------------------------------------------------------------------------x DECISION

BERSAMIN, J.:

This case involves a man who had sexual intercourse with a woman who, although 29 years of age, was a mental retardate with the mentality of a six- to seven-year old. The man, Charlie Butiong, seeks the review and reversal of the [1] judgment promulgated on May 18, 2005, whereby the Court of Appeals (CA) affirmed his conviction for rape handed down by the Regional Trial Court (RTC), Branch 258, in Parañaque City, for which he was imposed reclusion perpetua. He insists that the State did not duly establish that the woman had been a mental retardate. The records show that Butiong had been arraigned and tried under an information that alleged: xxxx

CONTRARY TO LAW.

[2]

Antecedents [3]

In the evening of October 7, 1998, AAA, then a 29-year-old mental retardate, was invited by Butiong, her long-time neighbor, to go over to his house because he would give her something. AAA obliged. He locked the door as soon as she had stepped inside his house, and then took off his shorts and the shorts of AAA. He led her to the sofa, where he had carnal knowledge of her. AAA remembered that she then felt pain in her abdomen and became angry at him for what he had [4] done. Upon reaching home, AAA forthwith told her older sister what had [5] happened. Her sister brought AAA to the police station, and later on to the National Bureau of Investigation (NBI), where AAA underwent a medico-legal examination by Dr. Armie M. Soreta-Umil. The medico-legal examination revealed that AAA’s hymen was intact but “distensible and its orifice wide (2.5 cms. in diameter) as to allow complete penetration by an average-sized adult Filipino male [6] organ in full erection without producing any genital injury.” Noticing AAA’s disorientation and incoherence, Dr. Soreta-Umil endorsed her to the NBI Psychiatric [7] Section for evaluation. AAA also underwent a series of psychological tests at the National Mental Hospital. The tests included the Raven’s Progressive Matrices Test, Bender Visual Motor Gestalt Test, and Draw a Person Test. A Rorschach Psycho[8] Diagnostic Test was not used because AAA was not able to answer. Another test, the Sack’s Sentence Completion Test, was not used because of AAA’s inability to [9] comply with the instructions. The results of the psychological tests showed that she had a mild level of mental retardation, and that her mental age was that of a child aged from six to seven years; she was unaware of what went on around her [10] and was interested only in gratifying her own needs. The Defense presented only one witness in the person of Dr. Natividad Dayan, whom it offered as an expert psychologist. She concluded that the Raven’s Progressive Matrices Test and the Bender Visual Motor Gestalt Test administered on AAA were unreliable for determining the existence of mental retardation. She based her conclusion on James Morizon’s DSM-4 Made Easy: The Clinician’s Guide for Diagnosis, and Jay Siskin’s Coping With Psychiatric and Psychological [11] Testimony. According to her, an individually administered intelligence test, like

the Stamp Intelligence Scale or the Weschler Adult Intelligence Scale, as well as projective techniques, like the Rorschach Psychodiagnostic Test and the Thematic Perception Test, should have been instead administered to appropriately determine [12] AAA’s mental age.

2005,

[15]

In sum, the Court sees no cogent reason to depart from the well-entrenched doctrine that the trial court’s assessment of the credibility of witnesses is accorded great respect because of its opportunity to hear their testimonies and observe their demeanor and manner of testifying. Absent any showing that the trial court overlooked or misappreciated some facts or circumstances of weight and substance which would affect the result of the case, the Court sees no reason to alter the findings of the trial court.

Ruling of the RTC The RTC rendered judgment finding Butiong guilty of rape, viz: WHEREFORE, the prosecution having been able to prove the guilt of the accused CHARLIE BUTIONG beyond reasonable doubt of the crime of simple RAPE defined and punishable under Art. 266-A par. 1 in relation to Art. 266-B par. 1 of the Revised Penal Code as amended by R.A. 8353, accused CHARLIE BUTIONG is hereby sentenced to suffer the penalty of RECLUSION PERPETUA. Pursuant to the existing jurisprudence, accused CHARLIE BUTIONG is further ordered to indemnify the private complainant, AAA, the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as and by way of exemplary damages. No pronouncement as to costs. SO ORDERED.

[13]

The RTC noted that nothing in Dr. Dayan’s testimony on the unreliability of the tests administered on AAA would invalidate the findings of psychologist Nimia de Guzman and Dr. Diana de Castro, both of the National Center for Mental Health, to the effect that AAA had mild level retardation with a mental age of a six- to seven-year old person; and that such findings were admissible and had more than sufficiently complied with the required historical and physical examination for [14] determining AAA’s mental condition. The trial judge himself held, based on his personal observation of AAA as a witness in court, that she was a retardate who could narrate what had transpired albeit with some difficulty about how she had been sexually abused. He considered AAA as a competent witness whose behavior and appearance manifested no possibility for her to concoct a story of her defloration at the hands of the accused.

Butiong appealed, but the CA affirmed the conviction on May 18, to wit:

WHEREFORE, the appealed Decision dated February 24, 2003 is affirmed in toto. SO ORDERED.

The CA considered the State’s evidence sufficient to support the conclusion that AAA was mentally retarded. It concluded that the State’s expert witness psychologist de Guzman had not only interviewed AAA and a relative of AAA but had also administered a series of tests on AAA upon which to base her findings about AAA’s mental condition; that the results of the psychiatric examination done by Dr. de Castro, as well as the trial judge’s personal observation that AAA was a mental retardate supported the findings of psychologist de Guzman; and that AAA could not legally give her consent to the sexual act, as held inPeople v. [16] Asturias, because the clinical findings showed her mentality to be at par with that of a six- or seven-year-old. The CA rejected Butiong’s argument that rape was not established because no semen had been taken from AAA, stressing that the fact of rape depended not on the presence of spermatozoa but on the fact of unlawful penetration of the female genitalia by the male organ, which the State amply proved. Issues In this appeal, Butiong submits that: I THE TRIAL COURT ERRED IN RULING THAT PROOF OF THE DATE OF THE COMMISSION OF THE OFFENSE IS NOT NECESSARY IN ORDER TO CONVICT THE ACCUSED-APPELLANT.

Ruling of the CA II

THE TRIAL COURT ERRED IN FINDING THAT THE OFFENDED PARTY IS A MENTAL RETARDATE. III THE TRIAL COURT ERRED IN RULING THAT A MENTAL RETARDATE IS IN THE SAME CLASS AS A WOMAN DEPRIVED OF REASON OR OTHERWISE UNCONSCIOUS. Anent the first assigned error, Butiong contends that the State did not establish rape because there was no evidence showing the exact date when the rape occurred. Under the second assigned error, he disputes the RTC’s conclusion that AAA was a mental retardate by focusing on the inconclusiveness of the findings of psychologist de Guzman brought about by her failure to ascertain AAA’s personal history and by her computing AAA’s mental age upon inaccurate and unverified information. He notes that two other physicians who had examined AAA, one from the NBI and the other from the National Center for Mental Health, were not presented as witnesses. He insists on his innocence, and emphasizes the testimony of Dr. Dayan on the unreliability of the tests administered on AAA. He maintains that the unreliability of the tests administered on AAA for determining the presence of mental retardation should be appreciated in his favor in accordance with People [17] v. Cartuano, Jr., which required that a diagnosis of mental retardation should be made after a thorough evaluation based on history, and physical and laboratory examinations by a clinician. Lastly, he posits that the State did not establish the elements of rape, considering that a mental retardate qualified neither as a “woman deprived of reason” nor as “a woman under twelve years of age” as provided under Article 266-A par. 1(b) nor of par. 1(d) of the Revised Penal Code.

The CA fully debunked the argument on the exact date of the rape not being established by simply quoting from AAA’s testimony that the rape had [18] occurred on October 7, 1998. We need to emphasize, however, that the date of the rape need not be precisely proved considering that date is not an element of [19] rape. Nor did the absence of spermatozoa from the genitalia of AAA negate or [20] disprove the rape. The basic element of rape is carnal knowledge or sexual [21] intercourse, not ejaculation. Carnal knowledge is defined as “the act of a man [22] having sexual bodily connections with a woman.” This explains why the slightest penetration of the female genitalia consummates the rape. As such, a mere touching of the external genitalia by the penis capable of consummating the sexual [23] [24] act already constitutes consummated rape. People v. Campuhan has aimed to remove any confusion as to the extent of “touching” in rape: [T]ouching when applied to rape cases does not simply mean mere epidermal contact, stroking or grazing of organs, a slight brush or a scrape of the penis on the external layer of the victim’s vagina, or the mons pubis, as in this case. There must be sufficient and convincing proof that the penis indeed touched the labias or slid into the female organ, and not merely stroked the external surface thereof, for an accused to be convicted of consummated rape. As the labias, which are required to be “touched” by the penis, are by their natural situs or location beneath the mons pubis or the vaginal surface, to touch them with the penis is to attain some degree of penetration beneath the surface, hence, the conclusion that touching the labia majora or the labia minora of the pudendum constitutes consummated rape.

Ruling We affirm the conviction. I Exact date of rape and absence of spermatozoa from victim’s genitalia are not elements of rape Butiong argues that the State did not duly establish the fact of rape because the exact date of the incident was indeterminate, and because no spermatozoa was found in AAA’s genital organ. The argument deserves no consideration.

The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hair but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that thelabia majora must be entered for rape to be consummated, and not

merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of [25] lasciviousness. [emphasis supplied] That AAA’s recollection on the rape was corroborated by the results of the medico-legal examination was sufficient proof of the consummation of rape. We have ruled that rape can be established by the sole testimony of the victim that is [26] credible and untainted with serious uncertainty. With more reason is this true [27] when the medical findings supported the testimony of the victim, like herein. II Rape was committed because AAA was a mental retardate One of Butiong’s contentions is that having sexual intercourse with AAA, a mental retardate, did not amount to a rape, because it could not be considered as carnal knowledge of a woman deprived of reason or of a female under twelve years of age as provided under Article 266-A of the Revised Penal Code, as amended.

or without her consent when, for any cause, she is not in a position to exercise any judgment about the matter. Carnal knowledge of the female with her consent is not rape, provided she is above the age of consent or is capable in the eyes of the law of giving consent. Thus, mere copulation, with the woman passively acquiescent, does not constitute rape. The female must not at any time consent; her consent, given at any time prior to penetration, however reluctantly given, or if accompanied with mere verbal protests and refusals, prevents the act from being rape, provided the consent is willing and free of initial coercion. Thus, where a man takes hold of a woman against her will and she afterward consents to intercourse before the act is committed, his act is not rape. However, where the female consents, but then withdraws her consent before penetration, and the act is accomplished by force, it is rape; and where a woman offers to allow a man to have intercourse with her on certain conditions and he refuses to comply with the conditions, but accomplishes the act without her consent, he is guilty of rape. [emphasis supplied] [29]

In his commentary on the Revised Penal Code, Justice Aquino discusses the concept of committing rape against the female’s will or without her consent, to wit:

The contention cannot be sustained. Rape is essentially a crime committed through force or intimidation, that is, against the will of the female. It is also committed without force or intimidation when carnal knowledge of a female is alleged and shown to be without her consent. This understanding of the commission of rape has been prevalent in both the common law and the statutory law systems. As Corpus Juris Secundumhas summed [28] up: At common law rape could be committed only where the unlawful carnal knowledge of a female was had without her consent or against her will; lack of consent was an essential element of the offense; and there can be no rape in the common-law sense without the element of lack of consent. Under the statutes punishing the offense, an essential element of the crime of rape is that the act was committed without the consent of the female, or, as it is otherwise expressed, against her will. The act of sexual intercourse is against the female’s will

In rape committed by means of duress, the victim’s will is nullified or destroyed. Hence, the necessity of proving real and constant resistance on the part of the woman to establish that the act was committed against her will. On the other hand, in the rape of a woman deprived of reason or unconscious, the victim has no will. The absence of will determines the existence of the rape. Such lack of will may exist not only when the victim is unconscious or totally deprived of reason, but also when she is suffering some mental deficiency impairing her reason or free will. In that case, it is not necessary that she should offer real opposition or constant resistance to the sexual intercourse. Carnal knowledge of a woman so weak in intellect as to be incapable of legal consent constitutes rape. Where the offended woman was feeble-minded, sickly and almost an idiot, sexual intercourse with her is rape. Her failure to offer resistance to the act did not mean consent for she was incapable of giving any rational consent.

The deprivation of reason need not be complete. Mental abnormality or deficiency is enough. Cohabitation with a feebleminded, idiotic woman is rape. Sexual intercourse with an insane woman was considered rape. But a deafmute is not necessarily deprived of reason. This circumstances must be proven. Intercourse with a deafmute is not rape of a woman deprived of reason, in the absence of proof that she is an imbecile. Viada says that the rape under par. 2 may be committed when the offended woman is deprived of reason due to any cause such as when she is asleep, or due to lethargy produced by sickness or narcotics administered to her by the accused. xxx [emphasis supplied] Butiong was arraigned, tried and convicted of the crime of rape as defined and penalized under paragraph 1, Article 266-A, in relation to paragraph 1, Article 266-B of the Revised Penal Code, as amended, under an amended information that plainly averred that AAA was a “mental retardate.” The insertion of the phrase in the amended information was significant, because the phrase put him on sufficient notice that the victim “was not in full possession of her normal reasoning [30] faculty.” The phrase further specifically indicated which of the four modes of committing the crime of rape as provided in paragraph 1, Article 266-A of theRevised Penal Code, as amended, applied in his case, namely: a.

Through force, threat or intimidation;

b.

When the offended party is deprived of reason or is otherwise unconscious;

c.

By means of fraudulent machination or grave abuse of authority;

d.

When the offended party is under 12 years of age, or is demented, even though none of the circumstances first mentioned is present.

Yet, Butiong’s contention is that his case did not come under any of the four modes due to carnal knowledge of a mental retardate not being either carnal knowledge of a female deprived of reason or otherwise unconscious, or of a female under 12 years of age or demented. The contention is unwarranted.

Article 266-A of the Revised Penal Code, as amended by Republic Act No. 8353, provides: Article 266-A. Rape; When And How Committed. Rape is committed – 1) By a man who have carnal knowledge of a woman under any of the following circumstances: a) Through force, threat or intimidation; b) When the offended party is deprived of reason or otherwise unconscious; c) By means of fraudulent machination or grave abuse of authority; and d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present. 2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any instrument or object into the genital or anal orifice of another person. Carnal knowledge of a mental retardate is rape under paragraph 1 of Article 266-A of the Revised Penal Code, as amended by Republic Act No. 8353 because a mental retardate is not capable of giving her consent to a sexual act. Proof of force or intimidation is not necessary, it being sufficient for the State to establish, one, the sexual congress between the accused and the victim, and, two, [31] the mental retardation of the victim. It should no longer be debatable that rape of a mental retardate falls under paragraph 1, b), of Article 266-A, supra, because the provision refers to a rape of a female “deprived of reason,” a phrase that refers [32] to mental abnormality, deficiency or retardation. Who, then, is a mental retardate within the context of the phrase “deprived of reason” used in the Revised Penal Code? [33]

In People v. Dalandas, the Court renders the following exposition on mental retardation and its various levels, viz:

Mental retardation is a chronic condition present from birth or early childhood and characterized by impaired intellectual functioning measured by standardized tests. It manifests itself in impaired adaptation to the daily demands of the individual’s own social environment. Commonly, a mental retardate exhibits a slow rate of maturation, physical and/or psychological, as well as impaired learning capacity. Although “mental retardation” is often used interchangeably with “mental deficiency,” the latter term is usually reserved for those without recognizable brain pathology. The degrees of mental retardation according to their level of intellectual function are illustrated, thus: Mental Retardation LEVEL DESCRIPTION TERM INTELLIGENCE QUOTIENT (IQ RANGE) I II III IV

Profound Severe Moderate Mild

Below 20 20-35 36-52 53-68

xxxx The traditional but now obsolescent terms applied to those degrees of mental retardation were (a) idiot, having an IQ of 0 to 19, and a maximum intellectual factor in adult life equivalent to that of the average two-year old child; (b) imbecile by an IQ of 20 to 49 and a maximum intellectual function in adult life equivalent to that of the average sevenyear old child; moron or feebleminded, having an IQ of 50 to 69 and a maximum intellectual function in adult life equivalent to that of the average twelve-year old child. Psychiatrists and psychologists apply the term “borderline” intelligence to those with IQ between 70 to 89. In People vs. Palma, we ruled that a person is guilty of rape when he had sexual intercourse with a female who was suffering from a “borderline mental deficiency.”[emphasis supplied]

Considering the findings of psychologist de Guzman to the effect that AAA had the mental age of a six- to seven-year old, an age equated with imbecility under

the previous classification, her mental age was even lower than that of a borderline mental deficiency within the context of that term as characterized in People v. [34] Dalandas, supra. As such, Butiong’s carnal knowledge of AAA amounted to rape of a person deprived of reason. The ability of the female to given rational consent to carnal intercourse determines if carnal knowledge of a mental retardate like AAA is rape. Indeed, the Court has consistently considered carnal knowledge of a female mental retardate with the mental age below 12 years of age as rape of a woman deprived of [35] [36] reason. As the Court aptly stated in People v. Manlapaz, where the victim was a 13-year old girl with the mentality of a five-year-old, that ability to give rational consent was not present, viz: Sexual intercourse with a woman who is deprived of reason or with a girl who is below twelve years of age is rape because she is incapable of giving rational consent to the carnal intercourse. “Las mujeres privadas de razon, enajenadas, idiotas, imbeciles, son incapaces por su estado mental de apreciar la ofensa que el culpable infiere a su honestidad y, por tanto, incapaces de consentir. Pero no es condicion precisa que la carencia de razon sea completa, basta la abnormalidad o deficiencia mental que solo la disminuye, sin embargo, la jurisprudence es discordante” (II Cuello Calon, Derecho Penal, 14th Ed., 1975, pp. 538-9). “Comete violacion el que yace mujer que no tiene normalmente desarrolladas sus facultades mentales (19 nov. 1930); aqui esta comprendido el yacimiento con debiles o retrasados mentales (11 mayo 1932, 25 feb. 1948, 27 sept. 1951); constituye este delito el coito con una niña de 15 años enferma de epilepsia genuina que carece de capacidad para conocer el valor de sus actos (2 marzo 1953); el yacimiento con oligofrenicas (mentally deficient persons) 28 abril, 24 octubre, 1956, 19 feb. 1958); xxx” (ibid., note 3). The same rule prevails in American jurisprudence. “There can be no question but that a copulation with a woman known to be mentally incapable of giving even an imperfect consent is rape” (State vs. Jewett, 192 At. 7). “An accused is guilty of the crime of rape when it is established that he had sexual intercourse with a female who was mentally incapable of validly consenting to or opposing the carnal act” (65 Am Jur 2nd 766 citing State vs. Prokosch, 152 Minn. 86,

187 NW 971; Cokeley vs. State, 87 Tex. Crim. 256, 220 SW 1099; 31 ALR 3rd 1227, sec. 3).

administered to the victim and to sufficiently explain the results of the tests to the [39] trial court.

“In this species of rape neither force upon the part of a man nor resistance upon the part of a woman forms an element of the crime. If, by reason of any mental weakness, she is incapable of legally consenting, resistance is not expected any more than it is in the case of one who has been drugged to unconsciousness, or robbed of judgment by intoxicants. Nor will an apparent consent in such a case avail any more than in the case of a child who may actually consent, but who by law is conclusively held incapable of legal consent. Whether the woman possessed mental capacity sufficient to give legal consent must, saving in exceptional cases, remain a question of fact xxx. It need but be said that legal consent presupposes an intelligence capable of understanding the act, its nature, and possible consequences. This degree of intelligence may exist with an impaired and weakened intellect, or it may not” (People vs. Boggs, 290 Pac. 618 citing People vs. Griffin, 49 Pac. 711 and People vs. Peery, 146 Pac. 44). [emphasis supplied]

In direct contrast to People v. Cartuano, this case did not lack clinical findings on the mentality of the victim.

III People v. Cartuano was not applicable To boost his challenge to the finding that AAA was a mental retardate, [37] Butiong cites People v. Cartuano, a case where the Court ruled that a diagnosis of mental retardation required a thorough evaluation of the history of the victim, and held that a physical and laboratory examination by a clinician was necessary. He insists that the findings of the psychologist and the physicians who had examined AAA fell short of the requirements set in People v. Cartuano, considering that psychologist de Guzman did not try to locate the biological parents of AAA for the purpose of ascertaining her personal history, and did not base her findings on reliable data. Butiong’s reliance on People v. Cartuano does not advance his cause. People v. Cartuano applies only to cases where there is a dearth of medical records to sustain a finding of mental retardation. Indeed, the Court has clarified so [38] in People v. Delos Santos, declaring that the records in People v. Cartuano were wanting in clinical, laboratory, and psychometric support to sustain a finding that the victim had been suffering from mental retardation. It is noted that in People v. Delos Santos, the Court upheld the finding that the victim had been mentally retarded by an examining psychiatrist who had been able to identify the tests

[40]

Moreover, as clarified in People v. Dalandas, People v. Cartuano does not preclude the presentation by the State of proof other than clinical evidence to establish the mental retardation of the victim. For sure, the courts are not entirely dependent on the results of clinical examinations in establishing mental retardation. [41] In People v. Almacin, for instance, the Court took into consideration the fact that the victim was illiterate and unschooled in concluding that she was mentally [42] incapable of assenting to or dissenting from the sexual intercourse. Also, [43] in People v. Dumanon, the Court concurred in the trial court’s observation and conclusion that the victim was a mental retardate based on her physical appearance and on her difficulty to understand and answer the questions during her [44] testimony. Here, the State’s witnesses sufficiently explained the psychological tests conducted to establish AAA’s mental retardation with the mentality of a six- or seven-year-old. The trial judge himself reached a conclusion on AAA’s mentality from his close personal observation of her as a witness in court, noting that she manifested a difficulty in responding to the questions, especially those bearing on [45] her being sexually abused. The trial judge’s observation to the effect that she had no notion of the wrong that had been done to her was validated by the clinical findings. As such, the totality of the evidence presented by the State established beyond reasonable doubt AAA’s deficient mental condition.

IV Presumption of innocence was overcome by sufficient evidence of guilt Notable is that Butiong did not testify. He offered neither alibi nor denial despite the strong charge of rape brought against him. His defense was purposely limited to his submission, through Dr. Dayan, that AAA had not been established to be a mental retardate. Thereby, he did not refute that he had carnal knowledge of AAA. Having earlier demonstrated the futility of Dr. Dayan’s discounting of the State’s evidence of AAA’s mental retardation, we can justifiably consider the presumption of innocence in favor of Butiong as overcome.

Still, even if he had asserted alibi and denial, his guilt for the rape of AAA would not be reversed in the face of AAA’s unwavering testimony and of her very positive and firm identification of him as the man who had undressed her and [46] sexually gratified himself off her. He could no longer hide behind the protective shield of his presumed innocence, but should have come forward with credible and strong evidence of his lack of authorship of the crime. Considering that the burden of the evidence had shifted to him but he did not discharge his burden at all, there is no other outcome except to affirm his guilt beyond reasonable doubt. WHEREFORE, the Court AFFIRMS the decision promulgated on May 18, 2005 in CA-GR CR HC No. 00862. The accused shall pay the costs of suit. SO ORDERED.

G.R. No. L-4445

February 28, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL BERONILLA, FILIPINO VELASCO, POLICARPIO PACULDO, and JACINTO ADRIATICO, defendants-appellants. Agripino A. Brillantes, Valera, Eufemio and Bernardez for appellants. Prospero C. Sanidad and Claro M. Recto for defendant. Office of the Solicitor General Juan R. Liwag and Solicitor Jaime R. de los Angeles and Martiniano P. Vivo for appellee. REYES, J.B.L., J.: This is an appeal by accused Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico from the judgment of the Court of First Instance of Abra (Criminal Case No. 70) convicting them of murder for the execution of Arsenio Borjal in the evening of April 18, 1945, in the town of La Paz , Province of Abra. Arsenio Borjal was the elected mayor of La Paz, Abra, at the outbreak of war, and continued to serve as Mayor during the Japanese occupation, until March 10, 1943, when he moved to Bangued because of an attempt upon his life by unknown persons. On December 18, 1944, appellant Manuel Beronilla was appointed Military Mayor of La Paz by Lt. Col. R. H. Arnold, regimental commander of the 15th Infantry, Philippine Army, operating as a guerrilla unit in the province of Abra. Simultaneously with his appointment as Military Mayor, Beronilla received copy of a memorandum issued by Lt. Col. Arnold to all Military Mayors in Northern Luzon, authorizing them "to appoint a jury of 12 bolomen to try persons accused of treason, espionage, or the aiding and abetting (of ) the enemy" (Exhibit 9). He also received from the Headquarters of the 15th Infantry a list of all puppet government officials of the province of Abra (which included Arsenio Borjal, puppet mayor of La Paz), with a memorandum instructing all Military Mayors to investigate said persons and gather against them complaints from people of the municipality for collaboration with the enemy (Exhibit 12-a). Sometime in March, 1945, while the operations for the liberation of the province of Abra were in progress, Arsenio Borjal returned to La Paz with his family in order to escape the bombing of Bangued. Beronilla, pursuant to his instructions, placed Borjal under custody and asked the residents of La Paz to file complaints against him. In no time, charges of espionage, aiding the enemy, and abuse of authority were filed against Borjal; a 12-man jury was appointed by Beronilla, composed of Jesus Labuguen as chairman, and Benjamin Adriatico, Andres Afos, Juanito Casal, Santiago Casal, Benjamin Abella, Servillano Afos, Mariano Ajel, Felimon Labuguen,

Felix Murphy, Pedro Turqueza, and Delfin Labuguen as members; while Felix Alverne and Juan Balmaceda were named prosecutors, Policarpio Paculdo as clerk of the jury, and Lino Inovermo as counsel for the accused. Later, Atty. Jovito Barreras voluntarily appeared and served as counsel for Borjal. Sgt. Esteban Cabanos observed the proceedings for several days upon instructions of Headquarters, 15th Infantry. The trial lasted 19 days up to April 10, 1945; the jury found Borjal guilty on all accounts and imposed upon him instruction from his superiors. Mayor Beronilla forwarded the records of the case to the Headquarters of the 15th Infantry for review. Said records were returned by Lt. Col. Arnold to Beronilla on April 18, 1945 with the following instructions: HEADQUARTERS 3RD MILITARY DISTRICT 15TH INFANTRY, USAFIP In the Field 16 April 1945

Msg. No. 337 Subject: Arsenio Borjal, Charges Against To: Military Mayor of La Paz, Abra.

performed the last rites over Borjal's remains. Immediately after the execution, Beronilla reported the matter to Col. Arnold who in reply to Beronilla's report, sent him the following message: HEADQUARTERS 3RD MILITARY DISTRICT 15TH INFANTRY, USAFIP In the Field 22 April 1945

Msg. No. 398 Subject: Report and information Re Borjal case To: Military Mayor Beronilla 1. Received your letter dated 18 April 1945, subject, above. 2. My request that you withhold action in this case was only dictated because of a query from Higher Headquarters regarding same. Actually, I believe there was no doubt as to the treasonable acts of the accused Arsenio Borjal and I know that your trial was absolutely impartial and fair. Consequently, I Can only compliment you for your impartial independent way of handling the whole case.

1. Returned herewith are the papers on the case of Arsenio Borjal. 2. This is a matter best handled by your government and whatever disposition you make of the case is hereby approved. (Sgd.) R. H. ARNOLD Lieut.-Colonel, 15th Inf., PA Commanding Received April 18, 1945, 10:35 a.m. (Sgd.) MANUEL BERONILLA Military Mayor, La Paz, Abra (Exhibit 8, 8-a) and on the night of the same day, April 18, 1945, Beronilla ordered the execution of Borjal. Jacinto Adriatico acted as executioner and Antonio Palope as grave digger. Father Luding of the Roman Catholic Church was asked to administer the last confession to the prisoner, while Father Filipino Velasco of the Aglipayan Church

(Sgd.) R. H. ARNOLD Lieut.-Colonel, 15th Inf., PA Commanding Received April 26, 1947 7:00 a.m. (Sgd.) MANUEL BERONILLA Military Mayor, La Paz, Abra (Exhibit 21, 21-a) Two years thereafter, Manuel Beronilla as military mayor, Policarpio Paculdo as Clerk of the jury, Felix Alverne and Juan Balmaceda as prosecutors, Jesus Labuguen, Delfin Labuguen, Filemon Labuguen, Servillano Afos, Andres Afos, Benjamin Adriatico, Juanito Casel, Santiago Casel, Mariano Ajel, Felix Murphy, Benjamin Abella, and Pedro Turqueza as members of the jury, Jacinto Adriatico as executioner, Severo Afos as grave digger, and Father Filipino Velasco as an alleged conspirator, were indicted in the Court of First Instance of Abra for murder, for allegedly

conspiring and confederating in the execution of Arsenio Borjal. Soon thereafter, the late President Manuel A. Roxas issued Executive Proclamation No. 8, granting amnesty to all persons who committed acts penalized under the Revised Penal Code in furtherance of the resistance to the enemy against persons aiding in the war efforts of the enemy. Defendant Jesus Labuguen, then a master sergeant in the Philippine Army, applied for and was granted amnesty by the Amnesty Commission, Armed Forces of the Philippines (Records, pp. 618-20). The rest of the defendant filed their application for amnesty with the Second Guerrilla Amnesty Commission, who denied their application on the ground that the crime had been inspired by purely personal motives, and remanded the case to the Court of First Instance of Abra for trial on the merits. Upon motion of defense counsel, the case against defendant Jesus Labuguen, who had been granted amnesty by the Amnesty Commission of the Armed Forces of the Philippines, was ordered provisionally dismissed: defendant Juan Balmaceda was discharged from the information so that he might be utilized as state witness, although actually he was not called to testify; while the case against defendants Antonio Palope (the grave digger) and Demetrio Afos( a boloman) was dismissed for lack of sufficient evidence. Trial proceeded against the rest of the defendants; and on July 10, 1950, the Court below rendered judgment, acquitting the members of the jury and the grave digger Antonio Palope on the ground that they did not participated in the killing of Arsenio Borjal; acquitting defendants Jesus Labuguen, Felix Alverne, Severo Afos, and Lauro Parado upon insufficiency of evidence to establish their participation in the crime; but convicting defendants Manuel Beronilla, Policarpio Paculdo, Filipino Velasco, and Jacinto Adriatico as conspirator and co-principals of the crime of murder, and sentencing them to suffer imprisonment of from 17 years, 4 months and 1 day ofreclusion temporal to reclusion perpetua, to indemnify the heirs of Arsenio Borjal jointly and severally in the amount of P4,000 with subsidiary imprisonment in case of insolvency, and each to pay one fourth of the costs. In convicting said defendants the Court a quo found that while the crime committed by them fell within the provisions of the Amnesty Proclamation, they were not entitled to the benefits thereof because the crime was committed after the expiration of the time limit fixed by the amnesty proclamation;: i.e., that the deceased Arsenio Borjal was executed after the liberation of La Paz, Abra. In view of the sentence meted by the Court below, the accused Beronilla, Paculdo, Velasco and Adriatico appealed to this Court. The records are ample to sustain the claim of the defense that the arrest, prosecution and trial of the late Arsenio Borjal were done pursuant to express orders of the 15th Infantry Headquarters. (Exhibit 9 and 12-a), instructing all

military mayors under its jurisdiction to gather evidence against puppet officials and to appoint juries of at least 12 bolomen to try the accused and find them guilty by two thirds vote. It is to be noted that Arsenio Borjal was specifically named in the list of civilian officials to be prosecuted (Exhibit 12-b). In truth, the prosecution does not seriously dispute that the trial and sentencing of Borjal was done in accordance with instructions of superior military authorities, altho it point to irregularities that were due more to ignorance of legal processes than personal animosity against Borjal. The state, however, predicates its case principally on the existence of the radiogram Exhibit H from Col. Volckmann, overall area commander, to Lt. Col. Arnold, specifically calling attention to the illegality of Borjal's conviction and sentence, and which the prosecution claims was known to the accused Beronilla. Said message is as follows: "Message: VOLCKMANN TO ARNOLD CLN UNDERSTAND THAT MUNICIPALITIES OF ABRA HAVE ORGANIZED JURY SYSTEM PD BELIEVE THAT THIS BODY IS ILLEGAL AND CANNOT TRY PUNISHMENTS THEREOF PD SPECIFIC INSTANCE IS BROUGHT TO YOUR ATTENTION FRO PROPER AND IMMEDIATE ACTION ON ONE ARSENIO BORJAL OF LA PAZ WHO HAS BEEN TRIED CMA CONVICTED AND SENTENCED TO BE HANGED PD REPORT ACTION TAKEN BY YOU ON THIS MATTER PD MSG BEGINS CLN" (EXH. H) The crucial question thus becomes whether or not this message, originally sent to Arnold's quarters in San Esteban, Ilocos Sur, was relayed by the latter to appellant Beronilla in La Paz, Abra, on the morning of April 18, 1945, together with the package of records of Borjal's trial that was admittedly returned to and received by Beronilla on that date, after review thereof by Arnold (Exhibit 8-8-a). Obviously, if the Volckmann message was known to Beronilla, his ordering the execution of Borjal on the night of April 18, 1945 can not be justified. We have carefully examined the evidence on this important issue, and find no satisfactory proof that Beronilla did actually receive the radiogram Exhibit H or any copy thereof. The accused roundly denied it. The messenger, or "runner", Pedro Molina could not state what papers were enclosed in the package he delivered to Beronilla on that morning in question, nor could Francisco Bayquen (or Bayken), who claimed to have been present at the delivery of the message, state the contents thereof.

The only witness who asserted that Beronilla received and read the Volckmann message, Exhibit H, was Rafael Balmaceda, a relative of Borjal, who claimed to have been, as Beronilla's bodyguard, present at the receipt of the message and to have read it over Beronilla's shoulder. This testimony, however, can not be accorded credence, for the reason that in the affidavit executed by this witness before Fiscal Antonio of Abra (Exhibit 4), Balmaceda failed to make any mention of the reading, or even the receipt, of the message. In the affidavit, he stated: Q. In your capacity as policeman, do you know of any usual occurrence that transpired in La Paz, Abra? — A. Yes, sir. Q. Will you state what is the event? — A. On April 17, 1945, I was assigned as guard at the Presidencia where Mayor Arsenio Borjal is confined. On the 18th of April, 1945, six bolomen came to me while I was on duty as guard, that Mayor Borjal should be tied, on orders of Mayor Beronilla, Mayor Borjal wanted to know the reason why he would be tied, as he had not yet learned of the decision of the jury against him. Mayor Borjal wrote a note to Mayor Beronilla, asking the reason for his being ordered to be tied. I personally delivered the note of Borjal to Mayor Beronilla. Mayor Beronilla did not answer the note, but instead told me that I should tie Mayor Borjal, as tomorrow he would die, as he cannot escape. I returned to the Presidencia, and Mayor Borjal was tied, as that was the ordered of Mayor Beronilla. The plain import of the affidavit is that the witness Rafael Balmaceda was not with Beronilla when the message arrived, otherwise Beronilla would have given him his orders direct, as he (Balmaceda) testified later at the trial. Moreover, it is difficult to believe that having learned of the contents of the Volckmann message, Balmaceda should not have relayed it to Borjal , or to some member of the latter's family, considering that they were relatives. In addition to Balmaceda was contradicted by Bayken, another prosecution witness, as to the hatching of the alleged conspiracy to kill Borjal. Balmaceda claimed that the accused-appellants decided to kill Borjal in the early evening of April 18, while Bayken testified that the agreement was made about ten o'clock in the morning, shortly after the accused had denied Borjal's petition to be allowed to hear mass. Upon the other hand, Beronilla's conduct belies his receipt of the Volckmann message. Had he executed Borjal in violation of superior orders, he would not have dared to report it to Arnold's headquarters on the very same day, April 18th, 1945, as he did (Exhibit 20), half an hour after the execution. And what is even more important, if Borjal was executed contrary to instructions, how could Lt. Colonel Arnold on April 21, 1945, write in reply (Exhibit 21, 21-a) "I can only compliment

you for your impartial but independent way of handling the whole case" instead of berating Beronilla and ordering his court martial for disobedience? Our conclusion is that Lt. Col. Arnold, for some reason that can not now be ascertained, failed to transmit the Volckmann message to Beronilla. And this being so, the charge of criminal conspiracy to do away with Borjal must be rejected, because the accused had no need to conspire against a man who was, to their knowledge, duly sentenced to death. The state claims that the appellants held grudges against the late Borjal. Even so, it has been already decided that the concurrence of personal hatred and collaboration with the enemy as motives for a liquidation does not operate to exclude the case from the benefits of the Amnesty claimed by appellants, since then "it may not be held that the manslaughter stemmed from purely personal * motives" (People vs. Barrioquinto, G. R. Nos. L-2011 and 2267, June 30, 1951). Actually, the conduct of the appellants does not dispose that these appellants were impelled by malice (dolo). The arrest and trial of Borjal were made upon express orders of the higher command; the appellants allowed Borjal to be defended by counsel, one of them (attorney Jovito Barreras) chosen by Borjal's sister; the trial lasted nineteen (19) days; it was suspended when doubts arose about its legality, and it was not resumed until headquarters (then in Langangilang, Abra) authorized its resumption and sent an observer (Esteban Cabanos, of the S-5) to the proceedings, and whose suggestions on procedure were followed; and when the verdict of guilty was rendered and death sentence imposed, the records were sent to Arnold's headquarters for review, and Borjal was not punished until the records were returned eight days later with the statement of Arnold that "whatever disposition you make of the case is hereby approved" (Exhibit 8), which on its face was an assent to the verdict and the sentence. The lower Court, after finding that the late Arsenio Borjal had really committed treasonable acts, (causing soldiers and civilians to be tortured, and hidden American officers to be captured by the Japanese) expressly declared that "the Court is convinced that it was not for political or personal reason that the accused decided to kill Arsenio Borjal" (Decision, p. 9; Record, p. 727). It appearing that the charge is the heinous crime of murder, and that the accusedappellants acted upon orders, of a superior officers that they, as military subordinates, could not question, and obeyed in good faith, without being aware of their illegality, without any fault or negligence on their part, we can not say that criminal intent has been established (U. S. vs. Catolico, 18 Phil., 507; Peo. vs. Pacana, 47 Phil., 48; Sent. of the Tribunal Supremo of Spain, 3 July 1886; 7 January 1901; 24 March 1900; 21 Feb. 1921; 25 March 1929). Actus non facit reum nisi mens si rea.

To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequence, as, in law, is equivalent to criminal intent. The maxim is, actus non facit reum, nisi mens rea-a crime is not committed if the minds of the person performing the act complained of be innocent. (U. S. vs. Catolico, 18 Phil., 507). But even assuming that the accused-appellant did commit crime with they are charged, the Court below should not have denied their claim to the benefits of the Guerrilla Amnesty Proclamation No. 8 (42 Off. Gaz., 2072)on the ground that the slaying of Arsenio Borjal took place after actual liberation of the area from enemy control and occupation. The evidence on record regarding the date of liberation of La Paz, Abra, is contradictory. The Military Amnesty Commission that decided the case of one of the original accused Jesus Labuguen, held that La Paz, Abra, was liberated on July 1, 1945, according to its records; and this finding was accepted by Judge Letargo when he dismissed the case against said accused on March 15, 1949. On the other hand, Judge Bocar and Hilario, who subsequently took cognizance of the case, relied on Department Order No. 25, of the Department of the Interior, dated August 12, 1948, setting the liberation of the Province of Abra on April 4, 1945, fifteen days before Borjal was slain. The two dates are not strictly contradictory; but given the benefit of the Presidential directive to the Amnesty Commissions (Adm. Order No. 11, of October 2, 1946) that "any reasonable doubt as to whether a given case falls within the (amnesty) proclamation shall be resolved in favor of the accused" (42 Off. Gaz., 2360), as was done in People vs. Gajo, Phil., 107 46 Off. Gaz., (No. 12) p. 6093. For the reasons stated, the judgment appealed from is reversed and the appellants are acquitted, with costs de oficio. Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and Concepcion, JJ.,concur.

G.R. No. L-4570 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MAXIMO PACHECO, alias EMONG, alias GUEMO, defendant-appellant. Office of the Solicitor General Pompeyo Diaz and Solicitor Pacifico P. de Castro for appellee. Cardenas & Casal for appellant. Bengzon (Jose), J.: In the year 1950, Maximo Pacheco was tried for treason in the court of first instance of Bulacan, the amended information alleging, in the first count, acts performed in Polo, Bulacan and in the second, acts in the City of Manila. The Honorable Manuel P. Barcelona Judge, in the decision dated January 10, 1951, found him guilty as charged, and sentence him to be imprisoned for life, to pay a fine of P10,000 and to indemnify the heirs of Ceferino Rivera in the amount of P6,000. The accused appealed in due time. His printed brief assigns four errors that raise two principal issues: (1) jurisdiction of the second court to try the second and (2) credibility of the witnesses. The information alleged in substance that Pacheco, being a Filipino citizen, willfully aided the Japanese in two instances, to wit: (1) the arrest, maltreatment and shooting of Ceferino Rivera on January 2, 1945 in the Municipality of Polo, Bulacan, and (2) the arrest and torture in Manila, in February 1945, of Judge Eugenio Angeles, whom the accused had pointed to the Japanese as a guerrilla major of Polo, Bulacan. At the opening of the trial, counsel for the defense questioned the jurisdiction of the Bulacan court to take cognizance of the second count, in as much as it referred to acts which occured in Manila. The Judge overruled the contention, adverting to its orders in previous cases on the same issue. We do not find in this record the reasons of the trial judge. Very probably, however, they refer to the same theory advanced by the People in this appeal relative to one continuous offense consisting of several acts occurring in different provinces, offense which may under the principles governing venue be prosecuted in any province wherein any material ingredient of the offense is shown to have been committed. The appellant however cites Republic Act No. 311 that in dissolving the Peoples Court ordered all cases then pending therein to be “transferred to, and tried by, the respective Courts of First Instance of the provinces or cities where the offenses are alleged to have been committed.” It is common knowledge that when the Government found it was no longer necessary to maintain one Peoples Court for the whole Philippines to try treason

indictments, the Congress abolished that Court and directed that treason cases pending before it shall be heard by the respective court of first instance. There is nothing to indicate congressional intention to disturb the usual rules on jurisdiction or venue of courts of first instance obtaining before the creation of the Peoples Court. Under the rules, the trial courts jurisdiction may be and should be upheld in this case. The crime of treason may be committed “by executing, either a single or several intentional overts acts, different or similar distinct and for that reason” it may be considered one single offense. (Guinto vs. Veluz 77 Phil. 801). It can therefore be prosecuted in any province wherein some of the essential ingredients thereof occured. (Section 9, Rule 106). U.S. vs. Santiago, 27 Phil. 408; U.S. vs. Cardell, 23 Phil. 207) To uphold appellant’s contention would be to permit another prosecution against him on the Court of First Instance of Manila (See Guinto vs. Veluz, supra). Having disposed of the preliminary question, we may now examine the record. As to the first count, Isidro Rivera, Dominga Camatos, Antonio de Guzman, Federico San Juan and Regino Galicia took the witness stand, and their combined testimony shows: In the morning of January 2, 1945 four Filipino makapilis (two of them were Maximo Pacheco, 25, and Teofilo Encarnacion) entered the house of Filomena de la Cruz in Pasong Balite, Polo, Bulacan, and arrested her son-in-law Ceferino Rivera, 24, as a guerrilla suspect, in the presence of his father Isidro Rivera, his wife Dominga Camatos and Filomena (Teofila) de la Cruz. he party was commanded by a Japanese officer. Maximo Pacheco, armed with a rifle, tied the hands of the prisoners. Thereafter the captive was marched to the Japanese garrison at Polo, Bulacan, followed by his near relatives already mentioned. The latter waited for him at the gate for two hours, but in vain. The next day, in the afternoon, they returned in time to see him with three other Filipinos, all tied, walking to the Isla bridge, Polo, guarded by four Filipinos, one of them the appellant, plus one or two Japanese soldiers. Near the foot of the bridge the Filipino captives were shot dead. Antonio de Guzman, whose house stood about thirty meters from the place beheld the massacre, which was also seen by Federico San Juan farmer, 38, and Regino Galicia, employee, 37. Antonio de Guzman swore it was this appellant who shot Ceferino Rivera on that occasion. Appellant’s overt act of taking part in the apprehension of Ceferino Rivera, as a guerilla suspect was testified to by Isidro Rivera and Dominga Camatos. But the defense contends that the latter is unworthy of credit because whereas she stated in direct examination that her husband had been arrested by four Filipinos (one of them Maximo Pacheco) yet on cross examination she answered it was a Japanese who made the arrest (p. 285 n.) But on the same page this woman declared:

P. Y los otros cuatro filipinos esteban alli mirando en compañia del japones, desde luego? R. El que le ato era un filipino. P. Quien de los filipinos ato a su esposo? R. Maximo Pacheco. There is consequently no reason to doubt her veracity on this score. Other quotations of the testimony of these two witnesses are submitted by appellant’s counsel, in an effort to destroy their credibility. They are either explainable, like the one above discussed, or refer to unsubstantial matters. That this appellant took active part in the arrest and execution of Ceferino Rivera, we have no reasonable doubt. His mere denial can not overcome the positive assertion of the witnesses. And his claim that he was also a guerilla, was held unfounded by the trial judge. Anyway, we have heretofore declared that such claim is no defense against overt acts of treason. (People vs. Jose Fernando, 79 Phil. 719; People vs. Carmelito Victoria, 78 Phil. 122; People vs. Claro Castillo, 78 Phil. 874). The second charge is also adequately proven by the testimony of Judge Eugenio Angeles, his son Gregorio, and Dr. Ciriaco Santiago. On February 2, 1945 about 7:30 a.m. the three were on their way to Hermoso Drug Store near Divisoria Market, Manila. Crossing a bridge on Azcarraga Street they met Ricardo Urrutia of Polo, friend of Judge Angeles, who stopped to tell them “the Americans were already in Malolos.” Hardly had the party crossed the bridge when Judge Angeles was surrounded by five young men all armed. One of them wearing a mask ordered him to proceed to the At Port studio nearby, which served as Headquarters of the Kempei Tai, dreaded Japanese organization. One of the young men was the herein accused. Dr. Santiago and Gregorio Angeles were not molested. In the studio Judge Angeles was brought to a room wherein he saw seven Filipinos (including this appellant) headed by one Santos residing in Polo. The latter asked Judge Angeles if he was a guerilla, and when he replied in the negative he was struck with a piece of lumber. Then he was subjected to several forms of torture. He was boxed and kicked and given the water cure. But he stoutly denied connection with the underground resistance. This accused was in the room and informed the investigators that he (Judge Angeles) was the chief of the guerillas of Polo. In view of this imputation the tortures continued. Fortunately for Judge Angeles, the Japanese began their retreat from Manila on February 3, the garrison was vacated, and he managed to escape together with other prisoners. It may be true, as contended by defense counsel that the tortures undergone by Judge Angeles were described by him as the sole witness; but his apprehension as a

guerilla was witnessed and related in open court by Dr. Santiago and his son Gregorio, compliance with the two witness rule being thereby effected.

G.R. No. 157171

March 14, 2006

Wherefore, after reviewing the whole record we find no hesitation in finding this appellant guilty of treason.

ARSENIA B. GARCIA, Petitioner, vs. HON. COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, Respondents

And as the penalty meted out to him accords with section 114 of the Revised Penal Code, the appealed decision should be, and it is hereby, affirmed with costs. So ordered.

DECISION QUISUMBING, J.:

Paras, C.J., Pablo, Padilla, Tuason, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.

This petition seeks the review of the judgment of the Court of Appeals in CA-G.R. CR 1 2 No. 24547 that affirmed the conviction of petitioner by the Regional Trial Court of Alaminos City, Pangasinan, Branch 54, for violation of Section 27(b) of Republic Act 3 No. 6646. Based on the complaint-affidavit of Aquilino Q. Pimentel, Jr., who ran in the 1995 senatorial elections, an information dated March 30, 1998, was filed in the Regional Trial Court of Alaminos, charging Herminio R. Romero, Renato R. Viray, Rachel Palisoc and Francisca de Vera, and petitioner, with violation of Section 27(b). The information reads: That on or about May 11, 1995, which was within the canvassing period during the May 8, 1995 elections, in the Municipality of Alaminos, Province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Election Officer Arsenia B. Garcia, Municipal Treasurer Herminio R. Romero, Public School District Supervisor Renato R. Viray, Chairman, Vice-Chairman, and Member-Secretary, respectively, of the Municipal Board of Canvassers of Alaminos, Pangasinan, tabulators Rachel Palisoc and Francisca de Vera, conspiring with, confederating together and mutually helping each other, did, then and there, willfully, and unlawfully decrease[d] the votes received by senatorial candidate Aquilino Q. Pimentel, Jr. from six thousand nine hundred ninety-eight (6,998) votes, as clearly disclosed in the total number of votes in the one hundred fifty-nine (159) precincts of the Statement of Votes by Precincts of said municipality, with Serial Nos. 008417, 008418, 008419, 008420, 008421, 008422 and 008423 to one thousand nine hundred twenty-one (1,921) votes as reflected in the Statement of Votes by Precincts with Serial No. 008423 and Certificate of Canvass with Serial No. 436156 with a difference of five thousand seventy-seven (5,077) votes. CONTRARY TO LAW.

4

In a Decision dated September 11, 2000, the RTC acquitted all the accused for insufficiency of evidence, except petitioner who was convicted as follows:

xxx

ON THE THIRD GROUND, NAMELY, THAT PETITIONER DID NOT PRODUCE THE TAPES DURING THE TRIAL BECAUSE IF PRODUCED, IT IS GOING TO BE ADVERSE TO HER.

5. And finally, on the person of Arsenia B. Garcia, the Court pronounces her GUILTY beyond reasonable doubt, of the crime defined under Republic Act 6646, Section 27 (b) for decreasing the votes of Senator Pimentel in the total of 5,034 and in relation to BP Blg. 881, considering that this finding is a violation of Election Offense, she is thus sentenced to suffer an imprisonment of SIX (6) YEARS as maximum, but applying the INDETERMINATE SENTENCE LAW, the minimum penalty is the next degree lower which is SIX (6) MONTHS; however, accused Arsenia B. Garcia is not entitled to probation; further, she is sentenced to suffer disqualification to hold public office and she is also deprived of her right of suffrage. The bailbond posted by her is hereby ordered cancelled, and the Provincial Warden is ordered to commit her person to the Bureau of Correctional Institution for Women, at Metro Manila, until further orders from the court. No pronouncement as to costs. IT IS SO ORDERED.

5

Petitioner appealed before the Court of Appeals which affirmed with modification the RTC Decision, thus, WHEREFORE, foregoing considered, the appealed decision is hereby affirmed with modification, increasing the minimum penalty imposed by the trial court from six (6) months to one (1) year. SO ORDERED.

6

The Court of Appeals likewise denied the motion for reconsideration. Hence, this appeal assigning the following as errors of the appellate court: I ON THE FIRST AND SECOND GROUNDS RELIED UPON BY THE RESPONDENT COURT, NAMELY, THAT IT COULD NOT HAVE BEEN SECRETARY VIRAY WHO DECREASED THE VOTES OF COMPLAINANT PIMENTEL SINCE HE MERELY RELIED ON WHAT THE PETITIONER DICTATED, AND THAT IT COULD NOT HAVE ALSO BEEN THE TABULATORS BECAUSE PETITIONER WAS THE ONE WHO READ THE ADDING [MACHINE] TAPE. II

III ON THE FOURTH GROUND, NAMELY, THAT THE PETITIONER WAS THE ONE WHO ENTERED THE REDUCED FIGURE OF 1,921 IN THE CERTIFICATE OF CANVASS (COC), Exh. "7", WHEN THE DUTY WAS THAT OF THE SECRETARY OF THE BOARD. IV THE REDUCTION OF THE VOTES OF CANDIDATE PIMENTEL WAS CLEARLY NOT 7 WILLFUL OR INTENTIONAL. Petitioner contends that (1) the Court of Appeals’ judgment is erroneous, based on speculations, surmises and conjectures, instead of substantial evidence; and (2) there was no motive on her part to reduce the votes of private complainant. Respondent on the other hand contends that good faith is not a defense in the violation of an election law, which falls under the class of mala prohibita. The main issue is, Is a violation of Section 27(b) of Rep. Act No. 6646, classified under mala in se or mala prohibita? Could good faith and lack of criminal intent be valid defenses? Generally, mala in se felonies are defined and penalized in the Revised Penal Code. When the acts complained of are inherently immoral, they are deemed mala in se, 8 even if they are punished by a special law. Accordingly, criminal intent must be clearly established with the other elements of the crime; otherwise, no crime is committed. On the other hand, in crimes that are mala prohibita, the criminal acts are not inherently immoral but become punishable only because the law says they are forbidden. With these crimes, the sole issue is whether the law has been 9 violated. Criminal intent is not necessary where the acts are prohibited for reasons 10 of public policy. 11

Section 27(b) of Republic Act No. 6646 provides: SEC. 27. Election Offenses.- In addition to the prohibited acts and election offenses enumerated in Sections 261 and 262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense: xxx

(b) Any member of the board of election inspectors or board of canvassers who tampers, increases, or decreases the votes received by a candidate in any election or any member of the board who refuses, after proper verification and hearing, to credit the correct votes or deduct such tampered votes. xxx 12

Clearly, the acts prohibited in Section 27(b) are mala in se. For otherwise, even errors and mistakes committed due to overwork and fatigue would be punishable. Given the volume of votes to be counted and canvassed within a limited amount of time, errors and miscalculations are bound to happen. And it could not be the intent of the law to punish unintentional election canvass errors. However, intentionally increasing or decreasing the number of votes received by a candidate is inherently immoral, since it is done with malice and intent to injure another. Criminal intent is presumed to exist on the part of the person who executes an act 13 which the law punishes, unless the contrary shall appear. Thus, whoever invokes good faith as a defense has the burden of proving its existence. Records show that the canvassing of votes on May 11, 1995 before the Board of Canvassers of the Municipality of Alaminos, Pangasinan was conducted as follows: 1. After the votes in the 159 precincts of the municipality of Alaminos were tallied, the results thereof were sealed and forwarded to the Municipal Board of Canvassers for canvassing; 2. The number of votes received by each candidate in each precinct was then recorded in the Statement of Votes with appellant, in her capacity as Chairman, reading the figures appearing in the results from the precincts and accused Viray, in his capacity as secretary of the Board, entering the number in the Statements of Votes as read by the appellant. Six Statements of Votes were filled up to reflect the votes received by each candidate in the 159 precincts of the Municipality of Alaminos, Pangasinan.

Votes. Accused Viray [then] records the subtotal in the proper column in the Statement of Votes. 5. After the subtotals had been entered by accused Viray, tabulators accused Palisoc and de Vera added all the subtotals appearing in all Statement of Votes. 6. After the computation, the corresponding machine tape on which the grand total was reflected was handed to appellant who reads the same and accused Viray enters the figure read by appellant in the column for 14 grand total in the Statement of Votes. Neither the correctness of the number of votes entered in the Statement of Votes (SOV) for each precinct, nor of the number of votes entered as subtotals of votes received in the precincts listed in SOV Nos. 008417 to 008422 was raised as an issue. At first glance, however, there is a noticeable discrepancy in the addition of the subtotals to arrive at the grand total of votes received by each candidate for all 159 15 precincts in SOV No. 008423. The grand total of the votes for private complainant, Senator Aquilino Pimentel, was only 1,921 instead of 6,921, or 5,000 votes less than the number of votes private complainant actually received. This error is also evident in the Certificate of Canvass (COC) No. 436156 signed by petitioner, Viray and 16 Romero. During trial of this case, petitioner admitted that she was indeed the one who announced the figure of 1,921, which was subsequently entered by then accused 17 Viray in his capacity as secretary of the board. Petitioner likewise admitted that she was the one who prepared the COC (Exhibit A-7), though it was not her duty. To our mind, preparing the COC even if it was not her task, manifests an intention to 18 perpetuate the erroneous entry in the COC.

3. After the number of votes received by each candidate for each precincts were entered by accused Viray in the Statements of Votes, these votes were added by the accused Palisoc and de Vera with the use of electrical adding machines.

Neither can this Court accept petitioner’s explanation that the Board of Canvassers had no idea how the SOV (Exhibit "6") and the COC reflected that private complainant had only 1,921 votes instead of 6,921 votes. As chairman of the Municipal Board of Canvassers, petitioner’s concern was to assure accurate, correct and authentic entry of the votes. Her failure to exercise maximum efficiency and fidelity to her trust deserves not only censure but also the concomitant sanctions as 19 a matter of criminal responsibility pursuant to the dictates of the law.

4. After the tabulation by accused Palisoc and de Vera, the corresponding machine tapes were handed to appellant who reads the subtotal of votes received by each candidate in the precincts listed in each Statement of

The fact that the number of votes deducted from the actual votes received by private complainant, Sen. Aquilino Pimentel, Jr. was not added to any senatorial candidate does not relieve petitioner of liability under Section 27(b) of Rep. Act No.

6646. The mere decreasing of the votes received by a candidate in an election is 20 already punishable under the said provision. At this point, we see no valid reason to disturb the factual conclusions of the appellate court. The Court has consistently held that factual findings of the trial court, as well as of the Court of Appeals are final and conclusive and may not be reviewed on appeal, particularly where the findings of both the trial court and the 21 appellate court on the matter coincide. Public policy dictates that extraordinary diligence should be exercised by the members of the board of canvassers in canvassing the results of the elections. Any error on their part would result in the disenfranchisement of the voters. The Certificate of Canvass for senatorial candidates and its supporting statements of votes prepared by the municipal board of canvassers are sensitive election 22 documents whose entries must be thoroughly scrutinized. In our review, the votes in the SOV should total 6,998.

23

As between the grand total of votes alleged to have been received by private complainant of 6,921 votes and statement of his actual votes received of 6,998 is a difference of 77 votes. The discrepancy may be validly attributed to mistake or error due to fatigue. However, a decrease of 5,000 votes as reflected in the Statement of Votes and Certificate of Canvass is substantial, it cannot be allowed to remain on record unchallenged, especially when the error results from the mere transfer of totals from one document to another. WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals sustaining petitioner’s conviction but increasing the minimum penalty in her sentence to one year instead of six months isAFFIRMED. SO ORDERED.

November 26, 1928 G.R. No. L-29535THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. MANUEL LOJO, JR., defendant-appellant. Jose Perez Cardenas for appellant. Attorney-General Jaranilla for appellee. VILLA-REAL, J.: Manuel Lojo, Jr. appeals to this court from two judgments of the Court of First Instance of Manila, the first in criminal case No. 35810 of said court (G. R. No. 29535) wherein, in accordance with the information, he was found guilty of the crime of homicide and sentenced to fourteen years, eight months and one day reclusion temporal, with the accessories of law, to indemnify the deceased’s heirs in the sum of P1,000, and to pay the costs; and the other in criminal case No. 35902 of the same court (G. R. No. 29536), finding him guilty of violation of section 1139 of the Revised Ordinances of the City of Manila, and sentencing him to six months’ imprisonment, to pay a fine of P200, with the proper subsidiary imprisonment in case of insolvency, and the costs of both instances. In support of his appeal, the appellant assigns the folowing alleged errors as committed by the court below, in said judgments, to wit: 1. The lower court erred in holding as a fact that the deceased, whom the appellant ran over, was in the middle of the street with one hand raised, with the evident desire that the defendant should stop his automobile. 2. The lower court erred in finding the defendant guilty of the crime of consummated homicide, and in sentencing him to fourteen years, eight months and one day reclusion temporal; and to indemnity the deceased’s heirs in the sum of P1,000. 3. The court below erred in sentencing the defendant to six months’ imprisonment and a fine of P600 for having violated section 1139 of Revised Ordinances No. 1600 of the City of Manila. The following facts were proven at the hearing, beyond a reasonable doubt: At about 3.30 a. m. of the 18th of January 1928, the dancers Maria Lingat and Natalia Tanchico, having finished their services as such in Lerma Cabaret for the night contracted with the herein accused, Manuel Lojo, Jr., to take them in his car to Manila to eat. The defendant made his passengers seat themselves beside him placing Maria Lingat in the middle. After having started his engine, Manuel Lojo, Jr., drove with his right hand while he put his left arm around his two passengers. Before going up Pretil Bridge on Juan Luna Street and towards the City of Manila, as the car was running very fast and had one of the front lights off, Policeman Nicanor

Constantino, standing in the middle of the road, raised his club as a signal to the defendant to stop his automobile. The defendant, far from paying any attention to the order of the agent of authority, headed straight for the policeman without diminishing his speed, dashing into him so that the unfortunate policeman sprawled upon the radiator of the car, then fell on the left running board and was thence hurled to the ground dying instantly as a result of a fracture of the skull and several internal and external injuries sustained in different parts of his body. When the dancer Maria Lingat saw that the car had run over the policeman she shouted to the defendant to stop, but the latter, instead of doing so, speeded it up and said to her: “Shut up, and don’n tell anybody.” On reaching the corner of Solis Street, in the City of Manila, Policeman Pelagio C. de las Alas, who was on duty there, signalled the defendant to stop his car, but again the latter paid no heed and sped dizzily. The defendant, testifying in his own behalf, admitted that he ran over the deceased Nicanor Constantino with his car and alleged by way of defense that on coming to the Pretil Bridge, and seeing a policeman in the middle of the street he tried to go to the right, but said policeman went in the same direction, thus resulting in the accident; that he did not stop his automobile for fear of being roughly treated by the people of the place. This alleged defense of the defendant’s is untenable, for when he saw the policeman signalling him to stop, the traffic regulations obliged him to slacken his speed and to obey the order. The fact that the defendant continued to speed, with the policeman ahead of him in the middle of the road signalling to him to stop, and the fact that he did not obey the order, show that he did not care whether he ran over that agent of authority or not. That he was conscious of his guilt is shown, moreover, by the fact that having violated the Revised Ordinances of the City of Manila, not only did he not report the incident to the first policeman he met on the road, that is Pelagio C. de las Alas, but he also disobeyed the latter’s order to stop. All of this contradicts his statement that he tried to avoid the accident by turning aside. A chauffeur who, going at great speed, sees in the middle of the road directly in his path a policeman signalling to him with the hand to stop, pays no attention to the order nor lessens the speed of his car, but goes straight for said policeman, runs over him, and kills him instantly, cannot pretend that he did not intend to cause the evil that he did; because, even within the limits of human foresight such an act could not produce any other result than what took place. The fact that the policeman moved, doubtless impelled by the instinct of self-preservation, and that the driver attempted to run aside his car, cannot be construed to show a lack of intention to cause the injury, because at that psychological moment, the movement of the defendant’s hand turning the car from one side to another was not voluntary, but purely automatic ? a mere reflection of the policeman’s movement.

For the foregoing considerations, we arrive at the conclusion, and so hold, that in running over the policeman and causing his death, the defendant acted with full knowledge of his act and its consequences, and with malice, being therefore criminally liable as a principal by direct participation in the crime of homocide. The act committed by the defendant constitutes, furthermore, the crime of assault upon an agent of authority, defined and penalized in article 249, paragraph 2, in connection with article 250, paragraph 1, of the Penal Code, the deceased policeman being actually engaged in the performance of his official duties when the accident occurred. The act committed by the defendant constituting two crimes, homicide and assault upon an agent of authority, according to article 89 of the same Code, the penalty for the more serious crime, which in this case is homocide, must be imposed on the defendant in its maximum degree. In virtue whereof, the appealed judgment in criminal case No. 35810 (G. R. No. 29535) is modified, and the defendant is found guilty of the complex crime of assault on an agent of authority with homocide, and sentenced to eighteen years’ reclusion temporal, the said appealed judgment being affirmed in all other respects, with costs against the appellant. The appealled judgment in criminal case No. 35902 (G. R. No. 29536) is affirmed in its entirety, with costs against the appellant. So ordered. Avanceña, C.J. Johnson, Street, Malcolm, Villamor, Ostrand and Romualdez, JJ., concur.

G.R. No. L-5418

February 12, 1910

UNITED STATES, plaintiff-appellee, vs. CECILIO TAÑEDO, defendant-appellant. O'Brien & De Witt, for appellant. Office of the Solicitor-General Harvey, for appellee. MORELAND, J.: The defendant in this case was accused of the crime of murder committed, as alleged in the information, as follows: That on or about the 26th day of January of this year, the said accused, with the intention of killing Feliciano Sanchez, invited him to hunt wild chickens, and, upon reaching the forest, with premeditation shot him in the breast with a shotgun which destroyed the heart and killed the said Sanchez, and afterwards, in order to hide the crime, buried the body of the deceased in a well. The motive is unknown. The premeditation consists in that the accused had prepared his plans to take the deceased to the forest, there to kill him, so that no one could see it, and to bury him afterwards secretly in order that the crime should remain unpunished. The defendant was found guilty of homicide by the Court of First Instance of the Province of Tarlac and sentenced to fourteen years eight months and one day of reclusion temporal, accessories, indemnification and costs. The defendant appealed. There is very little dispute about the facts in this case, in fact no dispute at all as to the important facts. The accused was a landowner. On the morning of the 26th of January, 1909, he, with Bernardino Tagampa, Casimiro Pascual, Valeriano Paulillo, and Juan Arellano, went to work on a malecon or dam on his land. The defendant took with him a shotgun and a few shells, with the intention to hunt wild chickens after he had set his laborers at work. He remained with his laborers an hour or so and then went a short distance away across a stream to see how the alteration which he had made in the malecon affected the flow of water from the rice filed on the other side of the stream. He carried his shotgun with him across the stream. On the other side of the stream he met the deceased, who, with his mother and uncle, had been living in a small shack for a month or so during the rice-harvesting season. The accused asked the uncle of the deceased where he could find a good place in which to hunt wild chickens. The uncle was lying on the floor in the interior of the shack sick of fever. The deceased, a young man about 20 years of age, was working

at something under a manga tree a short distance from the shack. Although the accused directed his question to the uncle inside of the shack, the deceased answered the question and pointed out in a general way a portion of the forest near the edge of which stood the shack. There is some contradiction between the testimony of the accused and the Government witnesses just at this point. The uncle of the deceased testified that the boy and the accused invited each other mutually to hunt wild chickens and that the accused accepted the invitation. The accused, however, testified that he did not invite the deceased to go hunting with him, neither did the deceased go with him, but that he remained under the manga tree "trying something." At any rate the accused went into the forest with his gun. What took place there is unknown to anybody except the accused. Upon that subject he testified as follows: And after Feliciano Sanchez pointed out that place to me, that place where the wild chickens were to be found, I proceeded to hunt, because, in the first place, if I could kill some wild chickens we would have something to eat on that day. So when I arrived at that place I saw a wild chickens and I shot him. And after I shot that chicken I heard a human cry. I picked up the chicken and went near the place where I heard the noise, and after I saw that I had wounded a man I went back toward the malecon, where my companions were working, running back, and when I arrived there I left my shotgun behind or by a tree not far from where my companions were working; and I called Bernardino Tagampa to tell him about the occurrence, and to him I told of that occurence because he is my friend and besides that he was a relative of the deceased, and when Tagampa heard of this he and myself went together to see the dead body. Only one shot was heard that morning and a chicken was killed by gunshot wound. Chicken feathers were found in considerable qualities at the point where the chicken was shot and where the accident occurred. The defendant within a few minutes after the accident went out of the woods to the malecon where he had left his laborers at work, carrying the dead chicken with him. The accused called Bernardino Tagampa, on of the laborers, to go with him and they disappeared for some time. Tagampa says that they went a little way toward the woods and came back. The accused says that they went to the place where the body of the deceased lay and removed it to a place in the cogon grass where it would not be easily observed. It is certain, however, that the body was concealed in the cogon grass. During the afternoon Tagampa left the malecon, where his fellow laborers were working, probably to hunt for a place in which to hide the body. The rest of the laborers saw the witness Yumul take the chicken which had been killed by the accused. He delivered it to the wife of the accused, who testified that she received the chicken from Yumul and that it had been killed by a gunshot wound. That evening the accused and Tagampa went together to dispose of the body finally.

They took it from the cogon grass where it lay concealed and carried it about seventeen or eighteen hundred meters from the place where it had originally fallen, and buried it in an old well, covering it with straw and earth and burning straw on top of the well for the purpose of concealing it. Tagampa said that he helped the accused dispose of the body because he was afraid of him, although he admits that the accused in no way threatened or sought to compel him to do so. The defendant prior to the trial denied all knowledge of the death of the deceased or the whereabouts of the body. On the trial, however, he confessed his participation in the death of the deceased and told the story substantially as above.

Bertrong vs. State, 2 Tex. Ap., 160; Williamson vs. State, 2 Ohio C. C., 292; U. S. vs. Meagher, 37 Fed. Rep., 875; U. S. vs. Castro, Fed. Cas., 14752; State vs. Legg, 3 L. R. A., N. S., 1152.)

So far as can be ascertained from the evidence the prior relations between the accused and the deceased had been normal. The deceased was a tenant on land belonging to a relative of the accused. There was no enmity and no unpleasant relations between them. No attempt was made to show any. There appears to have been no motive whatever for the commission of the crime. The Government has not attempted to show any. The only possible reason that the accused could have for killing the deceased would be found in the fact of a sudden quarrel between them during the hunt. That idea is wholly negative by the fact that the chicken and the man were shot at the same time, there having been only one shot fired.

In the case of the State vs. Legg, above referred to, it is said (p.1165):

Article 1 of the Penal Code says: Crimes or misdemeanors are voluntary acts and omissions punished by law. Acts and omissions punished by law are always presumed to be voluntary unless the contrary shall appear. Article 8, subdivision 8, reads as follows: He who, while performing a legal act with due care, causes some injury by mere accident without liability or intention of causing it. Section 57 of the Code of Criminal Procedure is as follows: A defendant in a criminal action shall be presumed to be innocent until the contrary is proved, and in case of a reasonable doubt that his guilt is satisfactorily shown he shall be entitled to an acquittal. The American doctrine is substantially the same. It is uniformly held that if life is taken by misfortune or accident while in the performance of a lawful act executed with due care and without intention of doing harm, there is no criminal liability. (Tidwell vs. State, 70 Ala., 33; State vs. Benham, 23 Ia., 154, 92 Am. Dec., 417;

In this case there is absolutely no evidence of negligence upon the part of the accused. Neither is there any question that he was engaged in the commission of a lawful act when the accident occurred. Neither is there any evidence of the intention of the accused to cause the death of the deceased. The only thing in the case at all suspicious upon the part of the defendant are his concealment and denial.

Where accidental killing is relied upon as a defense, the accused is not required to prove such a defense by a preponderance of the evidence, because there is a denial of intentional killing, and the burden is upon the State to show that it was intentional, and if, from a consideration of all the evidence, both that for the State and the prisoner, there is a reasonable doubt as to whether or not the killing was accidental or intentional, the jury should acquit. . . . But where accidental killing is relied upon, the prisoner admits the killing but denies that it was intentional. Therefore, the State must show that it was intentional, and it is clearly error to instruct the jury that the defendant must show that it was an accident by a preponderance of the testimony, and instruction B in the Cross case was properly held to be erroneous. In 3 L. R. A., N. S., page 1163, it is said: Evidence of misadventure gives rise to an important issue in a prosecution for homicide, which must be submitted to the jury. And since a plea of misadventure is a denial of criminal intent (or its equivalent) which constitutes an essential element in criminal homicide, to warrant a conviction it must be negative by the prosecution beyond a reasonable doubt. In support of such contention the author cites a number of cases. We are of the opinion that the evidence is insufficient to support the judgment of conviction. The judgment of conviction is, therefore, reversed, the defendant acquitted, and his discharge from custody ordered, costs de oficio. So ordered.

G.R. No. L-10126

October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants, vs. MARIANO MEDINA, defendant-appellant. Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants. Fortunato Jose for defendant and appellant. MONTEMAYOR, J.: Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner defendant Mariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the driver and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could, others had to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they could not get out of the bus. There is nothing in the evidence to show whether or not the passengers already free from the wreck, including the driver and the conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approach the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating the body of the bus

and the ground under and around it, and that the lighted torch brought by one of the men who answered the call for help set it on fire. That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim in the complaint. Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods. For purposes of reference, we are reproducing the pertinent codal provisions: ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case. Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756. ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755 ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission. We agree with the trial court that the case involves a breach of contract of transportation for hire, the Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the trial court that there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown by the fact that according to the testimony of the witnesses, including that of the defense, from the point where one of the front tires burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150 meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of the velocity at which the bus must have been running, its momentum carried it over a distance of 150 meters before it fell into the canal and turned turtle. There is no question that under the circumstances, the defendant carrier is liable. The only question is to what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: . . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.' And more comprehensively, 'the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first

event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case under the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural area where lanterns and flashlights were not available; and what was more natural than that said rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be attributed to the negligence of the carrier, through is driver and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763. As regard the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as well as the other elements entering into a damage award, we are satisfied that the amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney's fees may well be fixed at EIGHT HUNDRED (P800)

PESOS for the loss of merchandise carried by the deceased in the bus, is adequate and will not be disturbed. There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed immediately because they were already old, and that as a matter of fact, he had been telling the driver to change the said tires, but that the driver did not follow his instructions. If this be true, it goes to prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he changed the tires, specially those in front, with new ones, as he had been instructed to do, probably, despite his speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason to believe that the driver operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical injuries to others, and the complete loss and destruction of their goods, and yet the criminal case against him, on motion of the fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose testimony he was banking to support the complaint, either failed or appear or were reluctant to testify. But the record of the case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect of the said driver was negligent. In the public interest the prosecution of said erring driver should be pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite. In view of the foregoing, with the modification that the damages awarded by the trial court are increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs. Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.

November 18, 1912 G.R. No. L-7929 THE UNITED STATES, plaintiff-appellee, vs. GENOVEVA APEGO, defendants-appellant. Tirso de Irureta Goyena, for appellant. Attorney-General Villamor, for appellee. 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 band 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 tincans and other articles were scattered about the azotea of the house, to which Genoveva replied by saying: “What! have you arrive 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 circumstance that determine a more serious crime and penalty. It is unquestionable and beyond all doubt that Genoveva Apego, un 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 between the second and third ribs of the same side from an upper toward a lower 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 antemortem 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 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 questionable that the wound was inflicted by the defendant after she was 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, and touched her left arm; but in no manner may it be presumed that she was 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 penetrating the deceased’s 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 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, made 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 provication 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 decidely 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 by 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 indicate 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 considerations 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 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 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 onethird 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. Carson, J., dissents. Trent, J., dissents. March 15, 1930

G.R. No. L-32066 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee, vs. GONA (Mansaca), defendant and appellant. Jose Ma. Capili for appellant. Attorney-General Jaranilla for appellee. OSTRAND, J.: The defendant was charged before the Court of First Instance of the Province of Davao with the crime of homicide, the information reading as follows: That on or about October 26, 1928, in the municipal district of Pantukan, Province of Davao, Philippine Islands, as within the jurisdiction of the court, the said accused voluntarily, illegally, and criminally and with a bolo which he then carried, assaulted the Mansaca Mapudul, causing him a mortal wound on the left side of the neck and that as a consequence of said wound, the said Mapudul died. Upon trial the court below found the defendant guilty as charged in the information and taking into consideration the extenuating circumstance of non-habitual intoxication, sentenced him to suffer twelve years and one of reclusion temporal with the accessory penalties prosecuted by law to indemnity the heirs of the deceased in the sum of P1,000, and to the costs. From this sentenced the defendant appealed. It appears from the evidence that on the evening of October 26, 1928, a number of Mansacas celebrated a reunion in the house of the Mansaca Gabriel. There seems to have been liberal supply of alcoholic drinks and some of the men present became intoxicated, with the result that a quarrel took the place between the Mansaca Dunca and the defendant. Dunca and his son Aguipo eventually left the house and were followed by Mapudul and one Award. The defendant left the house about the same time with intention of assaulting Dunca, but in the darkness of the evening and in the intoxicated condition of the defendant, the mistook Mapudul for Dunca and inflicated on him a mortal wound with a bolo. There can no doubt that the defendant killed Mapudul and that he is guilty of the crime charged, but his attorney argues that in view of the fact that said defendant had no intention to kill the deceased and committed the crime by mistake, he should have been found guilty of homicide through negligence under paragraph 1 of article 568 of the Penal Code and not of the graver crime of intentional homicide. This contention is contrary to earlier decisions of this court. In these case of United State vs. Mendieta(34 Phil. 242), the court said: Even admitting that the defendant intended to injure Hilario Lauigan instead of Pedro Acierto, even that, in view of the mortal wound which inflicted upon the latter, in no way could be considered as a relief from his criminal act. That he made a mistake in killing one man instead of another, when it is proved that he acted maliciously and willfully, cannot relieve him from criminal responsibility. Neither do

we believe that the fact that he made a mistake in killing the wrong man should be considered as a mitigating circumstances. The appealed sentence is affirmed with the costs against the defendant. So ordered. Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.

October 6, 1933 G.R. No. L-38511 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FRANCISCO CAGOCO Y RAMONES (alias FRANCISCO CAGURO, alias FRANCISCO ADMONES, alias BUCOY, alias FRISCO GUY), defendant-appellant. W.A. Caldwell and Sotto and Astilla for appellant. Office of the Solicitor-General Bengzon for appellee. Vickers, J.: The accused was charged in the Court of First Instance of Manila with the crime of asesinato, committed as follows: That on or about the 24th day of July, 1932, in the City of Manila, Philippine Islands, the said accused did then and there willfully, unlawfully and feloniously, without any just cause therefor and with intent to kill and treachery, assault and attack one Yu Lon by suddenly giving him a fist blow on the back part of the head, under conditions which intended directly and especially to insure, the accomplishment of his purpose without risk to himself arising from any defense the victim Yu Lon might make, thus causing him to fall on the ground as a consequence of which he suffered a lacerated wound on the scalp and a fissured fracture on the left occipital region, which were necessarily mortal and which caused the immediate death of the said Yu Lon. After hearing the evidence, Judge Luis P. Torres found the defendant guilty as charged, and sentenced him to suffer reclusion perpetua, with the accessory penalties of the law, to indemnify the heirs of the deceased Yu Lon in the sum of P1,000, without subsidiary imprisonment in case of insolvency, and to pay the costs. Appellant’s attorney de oficio makes the following assignments of error: 1. The trial court erred in finding that the appellant the person who committed the assault on Yu Lon, the victim to the crime charged in the information. 2. Assuming that the appellant is the person who committed the assault on Yu Lon (a fact which we specifically deny), the trial court erred in finding that the appellant struck his supposed victim. 3. Assuming that the appellant is the person who committed the assault on Yu Lon, and that the appellant did strike his supposed victim (facts which we specifically deny) the trial court erred in finding that the blow was dealt from the victim’s rear. 4. The trial court erred in finding that the identity of the appellant was fully established.

5. Assuming that the four preceding errors assigned are without merit, the trial court erred in convicting the appellant of the crime of murder, under article 248 of the Revised Penal Code, instead of convicting him of the crime of maltreatment, under article 266 of the said Code. It appears from the evidence that about 8:30 on the night of July 24, 1932 Yu Lon and Yu Yee, father and son, stopped to talk on the sidewalk at the corner of Mestizos and San Fernando Streets in the District of San Nicolas Yu Lon was standing near the outer edge of the sidewalk, with his back to the street. While they were talking, a man passed back and forth behind Yu Lon once or twice, and when Yu Yee was about to take leave of his father, the man that had been passing back the forth behind Yu Lon approached him from behind and suddenly and without warning struck him with his fist on the back part of the head. Yu Lon tottered and fell backwards. His head struck the asphalt pavement; the lower part of his body fell on the sidewalk. His assailants immediately ran away. Yu Yee pursued him through San Fernando, Camba, and Jaboneros Streets, and then lost sight of him. Two other Chinese, Chin Sam and Yee Fung, who were walking along Calle Mestizos, saw the incident and joined him in the pursuit of Yu Lon’s assailant. The wounded man was taken to the Philippine General Hospital, were he died about midnight. A postmortem examination was made the next day by Dr. Anastacia Villegas, who found that the deceased had sustained a lacerated wound and fracture of the skull in the occipital region, and that he had died from cerebral hemorrhage; that he had tuberculosis, though not in an advanced stage, and a tumor in the left kidney. Yu Yee promptly reported the incident to the police, and about 3 o’clock the next morning Sergeant Sol Cruz and other detectives, accompanied by Yu Yee, went to the scene of the crime and found blood stains in the street. Yu Yee said that he could recognize his father’s assailant, and described him as being about five feet in height, 25 or 30 years old, with long hair and wearing a suit of dark clothes. After Sergeant Sol Cruz had been working on the case for three or four days he received information that the accused might be the person that had assaulted Yu Lon, and on August 4th the accused was arrested by detectives Manrique and Bustamante. He was wearing a dark wool suit. Yu Yee was immediately called to the police station. The accused was placed near the middle of a line of some eleven persons that had been detained for investigation. They were wearing different kinds of clothes. Yu Yee without hesitation pointed out the defendant as the person that had assaulted Yu Lon. He identified him not only by his long hair combed towards the back and worn long on the sides in the form of side-whiskers (patillas), but also by his high cheek-bones and the fact that his ears have no lobes. The defendant was identified at the trial not only by Yu Yee, but also by Chin Sam and Yee Fung. With respect to the first four assignment of error, which raise questions of fact as to the identification of the accused, and whether or not be struck the deceased, and if he did assault the deceased, whether he did so in a treacherous manner, we see no

sufficient reason, after considering the evidence and arguments of counsel, to doubt the correctness of the findings of the trial judge. The accused was identified by Yu Yee and two other Chinese, and although Yu Yee may have overstated at the trial some of the facial peculiarities in the defendant that he claimed to have observed at the time of the incident, it must be remembered that Yu Yee without hesitation picked the defendant out of a group of eleven persons as his father’s assailant, and that he had exceptional opportunities for observing his father’s assailant, because while that person was walking back and forth behind Yu Lon, Yu Yee was facing the assailant. We find the testimony of the defendant and his witnesses as to the whereabouts of the defendant on the night in question unworthy of credit. The testimony of the three Chinese that a man struck the deceased and then ran away is corroborated by the testimony of a 15-year old boy, Dominador Sales. As to the contention that the deceased would have fallen on his face if he had been struck on the back of the head, the expert testimony shows that in such a case a person instinctively makes an effort to preserve or regain his balance, and that as result thereof the deceased may have fallen backwards. Another consideration is that sidewalks almost invariably slope towards the pavement, and this being true, when the deceased straightened up, he naturally tended to fall backwards. The evidence leaves no room for doubt that the accused struck the deceased on the back of the head, because when the deceased was assaulted he and Yu Yee were standing on the sidewalk, facing each other, and if the accused had not struck the deceased on the back of the head, it would have been necessary for him to go between the deceased and Yu Yee. Since the accused struck the deceased from behind and without warning, he acted with treachery. “There is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and especially to insure its execution, without risk to himself arising from the defense which the offended party might make.” (Article 14, No. 16, of the Revised Penal Code.) The fourth assignment of error is a repetition of the first. In the fifth assignment of error it is contended that the appellant if guilty at all, should be punished in accordance with article 266 of the Revised Penal Code, or for slight physical injuries instead of murder. Paragraph No. 1 of article 4 of the Revised Penal Code provide that criminal liability shall be incurred by any person committing a felony (delito) although the wrongful act done be different from that which he intended; but in order that a person may be criminally liable for a felony different from that which he proposed to commit, it is indispensable that the two following requisites be present, to wit: (a) That a felony was committed; and (b) that the wrong done to the aggrieved person be the

direct consequence of the crime committed by the offender. U.S. vs. Brobst, 14 Phil. 310; U.S. vs. Mallari, 29 Phil. 14 U.S. vs. Diana, 32 Phil. 344.) In the Brobst case, supra, it was held that death may result from a blow over or near the heart or in the abdominal region, notwithstanding the fact that the blow leaves no outward mark of violence; that where death result as the direct consequence of the use of illegal violence, the mere fact that the diseased or weakened condition of the injured person contributed to his death, does not relieve the illegal aggressor of criminal responsibility; that one is not relieved, under the law in these Islands, from criminal liability for the natural consequences of one’s illegal acts, merely because one does not intend to produce such consequences; but that in such cases, the lack of intention, while it does not exempt from criminal liability, is taken into consideration as an extenuating circumstance. (U.S. vs. Luciano, 2 Phil. 96.) The reasoning of the decisions cited is applicable to the case at bar. There can be no reasonable doubt as to the cause of the death of Yu Lon. There is nothing to indicate that it was due to some extraneous case. It was clearly the direct consequence of defendants felonious act, and the fact that the defendant did not intend to cause so great an injury does not relieve him from the consequence of his unlawful act, but is merely a mitigating circumstance (U.S. vs. Rodriguez, 23 Phil. 22). The next question is whether the crime committed by the defendant should be classified as homicide or murder. Can the defendant be convicted of murder when he did not intend to kill the deceased? We have seen that under the circumstances of this case the defendant is liable for the killing of Yu Lon, because his death was the direct consequence of defendant’s felonious act of striking him on the head. If the defendant had not committed the assault in a treacherous manner. he would nevertheless have been guilty of homicide, although he did not intend to kill the deceased; and since the defendant did commit the crime with treachery, he is guilty of murder, because of the presence of the qualifying circumstance of treachery. The Supreme Court of Spain has held that there is no incompatibility, moral or legal, between alevosiaand the mitigating circumstance of not having intended to cause so great an injury: Considering that there is no moral or legal incompatibility between treachery and the mitigating circumstance No. 3 of article 9 of the Penal Code, because the former depends upon the manner of execution of the crime and the latter upon the tendency of the will towards a definite purpose, and therefore there is no obstacle, in case treacherous means, modes or forms are employed, to the appreciation of the first of said circumstances and simultaneously of the second if the injury produced exceeds the limits intended by the accused; and for that reason it cannot be held in the instant case that this mitigating circumstances excludes treachery, or that the accused, being chargeable with the death of the offended party, should not

be liable due to the voluntary presence of treachery in the act perpetrated, although with mitigation corresponding to the disparity between the act intended and the act consummated, etc. (Decision of May 10, 1905, Gazette of April 20, 906; Viada: 5th edition, Vol. 2, p. 156.) In the case of the United States vs. Candelaria (2 Phil. 104), this court speaking through Chief Justice Arellano said: In trying Jacinto to a tree the three defendants acted treacherously (alevosamente). Whether it was to prevent him from making resistance, whether it was to torture him for the purpose of making him give information, or whether it was for the purpose of inflicting further punishment, the fact is that by this means the defendants secured themselves against any risk which might have arisen from an attempt at self-defense on the part of the victim. We are of opinion that they had no intention to cause so great an evil as that which resulted, but this does not neutralize that other qualifying circumstance of the resulting death, because if there was no alevosia for the purpose of killing there was alevosia for the purpose of the illtreating. The means employed were not made use of for the precise purpose of making certain the death of Jacinto de Jesus but as a safe means of illtreating him without risk to the persons who were doing so. If by this means the ill treatment was aggravated, it follows that it is a qualifying circumstances in the death which resulted. It was not a condition of the purpose, but it was a condition of the criminal act itself, in whatever sense this be taken. The penalty of murder (article 248 of the Revised Penal Code) is reclusion temporal in its maximum period to death, and there being present in this case one mitigating and no aggravating circumstance the prison sentence of the appellant is reduced to seventeen years, four months, and one day ofreclusion temporal. As thus modified, the decision appealed from is affirmed, with the costs against the appellant. Avanceña, C.J., Street, Abad Santos, and Butte, JJ., concur.

G.R. No. 107948 April 12, 1994 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. FELIMON PETILLA II y MOTABATO, Accused-Appellant. KAPUNAN, J.: chanrobles virtual law library Convicted for violation of Section 4, Article II of Republic Act 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, accused-appellant interposes the present appeal.chanroblesvirtualawlibrary chanrobles virtual law library 1

An information was filed with the Regional Trial Court of Davao City against accused-appellant Felimon Petilla II y Motabato which reads as follows: That on or about March 14, 1992, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the above named accused wilfully, unlawfully and feloniously and without having been authorized by law, sold 49 sticks of marijuana leaves, a prohibited drug. Upon arraignment, accused-appellant through counsel pleaded not guilty to the crime charged.chanroblesvirtualawlibrary chanrobles virtual law library 2

After trial on the merits, a decision was rendered convicting accused-appellant, the dispositive portion of which reads: WHEREFORE, finding Felimon Petilla II y Motabato guilty beyond reasonable doubt of (sic) violation of Section 4, Article II of the Dangerous Drugs Act of 1972, as amended by B.P. Blg. 179, as charged, he is hereby sentenced to suffer life imprisonment and pay a fine of P20,000.00; and to pay the costs.chanroblesvirtualawlibrary chanrobles virtual law library The 47 marijuana cigarette sticks (Exhs. A-1 to A-47) are hereby confiscated in favor of the government and shall be destroyed without delay. 3

SO ORDERED. chanrobles virtual law library The facts as brought out by the evidence for the prosecution are as follows: chanrobles virtual law library A mobile patrol of Davao Metrodiscom arrested a certain Allan Amora on the night of March 14, 1992 for illegal possession of marijuana. After the arrest, the police officers brought Amora to the Intelligence Division of the Davao Metrodiscom and

there Amora revealed that he bought the marijuana from a certain "Bro." Hence, a buy-bust team was immediately created to entrap "Bro," the person alleged to have sold the marijuana to Amora.chanroblesvirtualawlibrary chanrobles virtual law library The buy-bust team was composed of Capt. Zosimo Yu as the leader, SPO1 Billy Echon, SPO3 Joselito Baradas and SPO3 Marlon Pinute as members. Amora was designated as the poseur-buyer. The team forthwith went to Bonifacio Extension, the place where the mobile patrol earlier arrested Amora.chanroblesvirtualawlibrary chanrobles virtual law library Upon reaching Bonifacio Extension at 7:45 o'clock P.M., SPO3 Pinute positioned himself about 5 to 7 meters from where Amora and SPO1 Echon were. About a minute later, a person called "Bro," whose real name turned out to be Felimon Petilla III, appeared. SPO1 Echon and Amora then gave P200.00 to "Bro," who told them to wait beside the electric post nearby. "Bro" then proceeded to the interior of Bonifacio Extension where there was a cluster of small houses. However, instead of staying near the electric post SPO1 Echon and Amora went to a store nearby. At that moment, a certain alias "Boy," herein accused-appellant, appeared near the store.chanroblesvirtualawlibrary chanrobles virtual law library After 15 minutes, "Bro" returned with a package wrapped in newspaper. "Bro" directly handed the package to accused-appellant who then approached SPO1 Echon and Amora at the store. It was at this point when SPO1 Echon grabbed the hand of accused-appellant and instructed the other members of the team to pursue "Bro." Unfortunately, "Bro" ran towards the public market and disappeared in the crowd.chanroblesvirtualawlibrary chanrobles virtual law library Specimen samples from each of the 47 cigarette sticks were brought to the PNP Crime Laboratory, Davao City for examination. Forensic Analyst Salome Jose found the specimens positive for marijuana.chanroblesvirtualawlibrary chanrobles virtual law library The accused-appellant, on the other hand, testified that in the evening of March 14, 1992, he and one William Gitacay, a boarder at his house located at 234 Bonifacio Street Extension, went to dispose of garbage in front of the Mabini Public Market. On their way home, they were accosted by policemen who inquired where they came from. Accused-appellant answered that they went to throw some garbage. One of the policemen held accused-appellant's arm and told him to wait inside the patrol car. The policeman then rummaged through the garbage pile, but did not find anything there. Accused-appellant and Gitacay were then brought to the PC barracks where they met Amora for the first time. Amora was holding a marijuana cigarette stick wrapped in a piece of paper. Amora told the police investigator that

accused-appellant was the source of the marijuana. The investigator then brought accused-appellant to a dark room at the back of the Police Headquarters where he tried to force him (accused-appellant) to admit that he sold marijuana to Amora. Accused-appellant denied the imputation. However, the policeman slapped him several times and poked a gun into his mouth. Despite the threat, accusedappellant steadfastly denied that he ever sold marijuana to Amora.chanroblesvirtualawlibrary chanrobles virtual law library

and arrested him. There is nothing to show that accused-appellant knew of the contents of the package.chanroblesvirtualawlibrary chanrobles virtual law library

Gitacay corroborated accused-appellant's testimony. Gitacay averred that he was a boarder in the house of accused-appellant; that he and accused-appellant were together at 8:00 o'clock P.M. on March 14, 1992 disposing of some garbage at the Mabini Public Market, but on their way back, they were apprehended by policemen. Gitacay also testified that he and the accused were then brought to Camp Domingo Leonor. Thereafter, Gitacay was released but the accused-appellant continued to be detained.chanroblesvirtualawlibrary chanrobles virtual law library

Section 4, Article II, of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972 provides:

Accused-appellant assigns the following as errors of the trial court: I.chanrobles virtual law library IN DECLARING THE APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF SEC. 4 ARTICLE II OF THE DANGEROUS DRUGS ACT OF 1972 AS AMENDED BY B.P. BLG. 179. II.chanrobles virtual law library IN FINDING APPELLANT SELLING 47 STICKS OF MARIJUANA.

Accused-appellant's main argument is that the package wrapped in a newspaper was only handed to him by his brother and there is no evidence to indicate that accused-appellant knew of its contents.chanroblesvirtualawlibrary chanrobles virtual law library

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. - The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as broker in any such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed." (as amended by PD No. 1675, February 17, 1980) Section 2 (f) of Article I of the same law defines the word "deliver", thus: (f) "Deliver" - refers to a person's act of knowingly passing a dangerous drug to another personally or otherwise, and by any means, with or without consideration. The case for the prosecution was woven principally from the testimony of SPO1 Echon. This witness declared:

III.chanrobles virtual law library IN NOT HOLDING FELIMON PETILLA III ALIAS BRO AS THE SELLER OF 47 STICKS OF 4 MARIJUANA. chanrobles virtual law library The appeal is impressed with merit.chanroblesvirtualawlibrary chanrobles virtual law library There is no evidence at all that accused-appellant sold, delivered or otherwise committed an act violative of the Dangerous Drugs Act. What was only proved by the prosecution was that the package wrapped in a newspaper was handed by "Bro" to accused-appellant who, in turn, approached the police officers with the package. It was at this juncture that SPOI Echon grabbed accused-appellant's hand

Q And while you and Allan Amora were in the nearby store where the other members of the team situated? chanrobles virtual law library A. They were in the dark area which has a distance of 7 meters from me.chanroblesvirtualawlibrary chanrobles virtual law library Q. How may meters were you or how long have you been in the nearby store before Allan Amora returned . . . I will reform, Your Honor. How long were you in the nearby store before alias Bro returned from the cluster of houses? chanrobles virtual law library A. About 15 minutes.chanroblesvirtualawlibrary chanrobles virtual law library

Q. Now, when Allan Amora delivered the P200.00 to alias Bro, were there companions of alias Bro? chanrobles virtual law library A. None, sir.chanroblesvirtualawlibrary chanrobles virtual law library Q. So, at that time when you met alias Bro with Allan Amora at the electric post along Bonifacio Extension and the P200.00 amount was delivered to alias Bro by Allan Amora, alias Bro was alone and he was never accompanied by any other person? chanrobles virtual law library

Q. You mean they arrived at the store together? chanrobles virtual law library A. When alias Bro arrived he handed the stuff to alias Boy and alias Boy went near us and this alias Bro left. xxx xxx xxx COURT: chanrobles virtual law library

A. None, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q. You show the court how it looked when it was handed over by alias Bro to the accused.chanroblesvirtualawlibrary chanrobles virtual law library

Q. You said that it took 15 minutes for alias Bro to return from the time . . . to return from the cluster of houses inside Bonifacio Extension, when alias Bro returned was he accompanied by some persons? chanrobles virtual law library

(WITNESS WRAPPING THE MARIJUANA WITH THE NEWSPAPER AND FOLDING BOTH ENDS OF THE NEWSPAPER) chanrobles virtual law library

A. No, sir.chanroblesvirtualawlibrary chanrobles virtual law library

Q. So, from where you were looking at the time this Exh. A-48 was handed over by alias Bro to Alias Boy, you cannot tell what is inside because of this newspaper wrapper, is that correct? chanrobles virtual law library

Q. He was alone when he returned and that was the time when you arrested or held the hand of alias Boy? chanrobles virtual law library A. When he arrived he gave marijuana to Boy and when he went near us I arrested Boy.chanroblesvirtualawlibrary chanrobles virtual law library Q. So, you saw alias Bro holding marijuana and delivering the said marijuana to alias Boy, is that what you mean? chanrobles virtual law library

A. I know, sir, because I was told by Allan that it was marijuana. xxx xxx xxx Q. Now, at the time this was handed by Alias Bro to Alias Boy, can you see what is inside this wrapped newspaper? chanrobles virtual law library

A. Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

A. I saw it handed to Alias Boy.chanroblesvirtualawlibrary chanrobles virtual law library

Q. And after you saw that alias Boy was already holding the marijuana which was handed by alias Bro that was the time you held the hand of alias Boy, is that correct? chanrobles virtual law library

Q. You did not see what was wrapped inside the wrapper? chanrobles virtual law library A. No."

5

A. Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library COURT: chanrobles virtual law library Q. When alias Boy arrived, where were you and alias Bro went? (sic) chanrobles virtual law library A. When alias Bro arrived, alias Boy was there but I do not know him.chanroblesvirtualawlibrary chanrobles virtual law library

From the foregoing testimony, there is nothing therein from which to draw any reasonable conclusion that accused-appellant knew of the contents of the package handed to him by Felimon Petilla III alias "Bro" who happens to be his brother. There is no evidence pointing to a conspiracy between "Bro" and the accusedappellant in the attempt to sell marijuana to the poseur-buyer and police officers. For that matter, there was no agreement or arrangement whether express or implied, direct or indirect, between the police officers and accused-appellant on the drug deal. Accused-appellant did not solicit or receive the marked money. The only

participation of the accused-appellant, after the package was given to him by "Bro," was to approach SPO1 Echon and Amora with the manifest purpose of handing the same to them. The package did not stay in the possession of accused-appellant for more than a few fleeting seconds. There is not even a hint that there was a conversation between accused-appellant and "Bro" wherein the former was apprised of the contents of the package.chanroblesvirtualawlibrary chanrobles virtual law library

UNITED STATES v. FOWLER UNITED STATES of America, Plaintiff-Appellee, v. Charles Andrew FOWLER, a.k.a. Man, Defendant-Appellant.

It is significant to note that while accused-appellant was charged in the information with the offense of sellingmarijuana, the evidence for the prosecution tended to establish that he was caught in the act of "delivering" the prohibited drug.chanroblesvirtualawlibrary chanrobles virtual law library

Before EDMONDSON, BARKETT and ROTH,Circuit Judges.*

No. 08-15463. -- April 14, 2010

Kenneth S. Siegel (Court-Appointed), Kenneth S. Siegel, P.A., Tampa, FL, for Fowler.Judy K. Hunt, Tampa, FL, for U.S.

Under Section 2(b) of the Dangerous Drugs Act, it is required that the offender knowingly delivered a dangerous drug to another. The prosecution miserably failed to prove that accused-appellant had knowledge of the contents of the package.chanroblesvirtualawlibrary chanrobles virtual law library

Charles Andrew Fowler appeals his conviction for murder with the intent to prevent a person from communicating information about a federal offense to a federal law enforcement officer or judge of the United States, in violation of 18 U.S.C. § 1512(a)(1)(C). Fowler argues that the government failed to present sufficient evidence to support his conviction. We affirm.

In People vs. Libag, 184 SCRA 707 we made the following pronouncement:

I. BACKGROUND

Finally, the information accused Roberto Libag of the "attempt to sell, deliver, give away to another and distribute three (3) kilos of marijuana flowering tops, a prohibited drug well-knowing that the sale, delivery and distribution to another of such drug is prohibited . . . .chanroblesvirtualawlibrary chanrobles virtual law library

In March 1998, Christopher Gamble, Jeffrey Bouyie, and Andre Paige robbed a Holiday Inn in Dundee, Florida. They then decided they would rob a NationsBank the next morning, and they recruited Fowler and Robert Winston to help them. Fowler and Winston had a stolen Oldsmobile that they used to surveille the bank and that they intended to use in the robbery. After surveilling the bank, they retrieved guns, masks, and gloves, and went to the Oakland Cemetery to prepare for the bank robbery. After concocting their plan, the five men donned black clothing and started drinking, taking drugs, and listening to music. Shortly before daybreak, Fowler left the car to use cocaine, because he did not want the others to see how much he had.

It is basic that in a criminal case, the prosecution avers the guilt of the accused who is presumed to be innocent until the contrary is proved. Therefore, the prosecution must prove such guilt by establishing the existence of all the elements of the crime charged. In so doing, the prosecution must rely on the strength of its own evidence, not on the weakness of the defense. Clearly, one of the elements of the offense is that the accusedknowingly delivered a dangerous drug to another. The prosecution must prove knowledge of the accused, not that he knew that marijuana is classified as a dangerous drug, but that he knew as marijuana the contents of the plastic bag he delivered. Well-settled is the doctrine that where inculpatory facts are susceptible of two interpretations, the interpretation that will lead to acquittal must be 6 sustained. chanrobles virtual law library WHEREFORE, finding accused-appellant Felimon Petilla II innocent of the crime charged against him, the appealed decision is REVERSED and accused-appellant is hereby ACQUITTED on reasonable doubt.chanroblesvirtualawlibrary chanrobles virtual law library

While Fowler was away, Haines City Police Officer Todd Horner drove up behind the stolen Oldsmobile and shone its spotlight at the car and its occupants. The Oakland Cemetery was known as a high-crime area, particularly for drug trafficking, and as a place for leaving stolen cars. Officer Horner called the Haines City police dispatcher and reported that he was going to investigate a suspicious vehicle. He approached the group and told them not to move. At trial, Gamble testified that Officer Horner then pulled out a gun and told the group to give him their names so that he could check for outstanding warrants. At that point, Fowler snuck up behind Officer Horner and Gamble started talking to Officer Horner to distract him. Once Fowler was directly behind Officer Horner, Fowler grabbed Officer Horner's gun and Gamble, Winston, and Paige helped

Fowler gain control of it. At trial, Gamble explained that they had subdued Officer Horner because “by the clothing that we had on-I mean it happened so fast, we didn't have time to throw the clothes off and look like regular people. We was [sic] going to rob a bank. So, it was evident. He sees all this black, you know. He knowed *sic+ that something ain't right, and he knowed *sic+ before that I was robbing.” Because it was spring in Florida, it was suspicious that all of the occupants were wearing black clothes and gloves. Gamble told Officer Horner to relinquish the gun and that nothing would happen to him. Officer Horner then gave Fowler the gun and asked Gamble, “Chris, why are you doing this?” Gamble testified that when Officer Horner called him by his first name, the rest of the group lost control and “went a little crazy,” and Fowler stated that they would not be able to “walk away from this thing.” Fowler told Officer Horner to get on his knees. Gamble told Fowler to calm down and to give him the gun. Gamble reminded Fowler that Officer Horner knew only Gamble's name; if anything happened, Gamble would handle it and nothing would happen to Fowler. In the midst of the conversation, Bouyie yelled from the car, “kill that cracker,” and Fowler shot Horner in the back of the head. Gamble was later arrested and convicted for robbing an ABC Liquor Store in 1999 and was sentenced to 20 years' imprisonment in a state prison. In March 2002, while serving his sentence, Gamble called Polk County law enforcement officials and told them he had robbed the Holiday Inn the night that Officer Horner was killed. He eventually told them that Fowler had murdered Horner. Gamble subsequently pled guilty to federal crimes, including the Holiday Inn robbery, and received a life sentence with a consecutive sentence of 107 years' imprisonment. In 2007, Fowler was indicted for murdering Officer Horner with the intent to 1 prevent Horner from communicating information about a federal offense to a federal law enforcement officer or judge of the United States, in violation of 18 2 U.S.C. § 1512(a)(1)(C) (“Count 1”). The jury found Fowler guilty on both counts, and the court sentenced him to life imprisonment for Count 1 and ten years' imprisonment for Count 2, which were to run consecutively. II. DISCUSSION In relevant part, 18 U.S.C. § 1512(a)(1)(C) provides that it is a federal criminal offense to “kill* + ․ another person, with intent to ․ prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense 3 ․” Thus, for the government to prove a violation of § 1512(a)(1)(C) it must show: (1) the defendant knowingly and willfully killed a person; and (2) the defendant killed the person with the intent to prevent the communication of information

“relating to the commission or possible commission of a*f+ederal ․ offense ․” 18 U.S.C. § 1512(a)(1)(C). There is no question that Fowler killed Officer Horner with the intent to prevent his further investigation and discovery of the group's criminal activities. Fowler argues, however, that no evidence was presented either that: (1) it was likely that there would be a federal investigation of any of the federal crimes involving Fowler and his group; or (2) it was likely that the information Officer Horner might have obtained would have been transferred to a federal officer or federal judge by Officer Horner. Thus, Fowler contends the government failed to prove the federal nexus to the murder, which is an essential element of a violation of § 1512(a)(1)(C). Fowler misperceives the requirements of the statute. Nothing in § 1512(a)(1)(C) requires proof that a federal investigation is ongoing, imminent, or likely. To the contrary, the statute explicitly provides that the murder must have been intended to prevent communication relating to the “possible commission” of a federal offense. Id. (emphasis added). Fowler's sufficiency argument is based on his incorrect assertion that the federal nexus required by § 1512(a)(1)(C) requires proof that the victim would have likely communicated information relating to the possible commission of a federal offense to federal authorities. In construing the statute this way, Fowler focuses on the victim's state of mind instead of, as the statute requires, the defendant's state of mind. His approach has been rejected by the majority of our sister circuits and by this court in United States v. Veal, 153 F.3d 1233, 1251-52 (11th Cir.1998), which addressed the 4 similarly-worded § 1512(b)(3). In Veal, this court rejected a similar argument directed at § 1512(b)(3), which prohibits intimidating or threatening a person with intent to “hinder, delay or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.” § 1512(b)(3) (emphasis added). This court held that to prove the required federal nexus, the government need prove only that there was “the possibility or likelihood ․ that information would be transferred to federal authorities.” Veal, 153 F.3d at 1251-52 (emphasis in original). In order to establish a violation of § 1512(a)(1)(C), the same issue as the one currently before the court, the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits have all held that the government need not prove that a federal investigation is underway or imminent, but rather only that the defendant intended to prevent the murder victim from potentially communicating with federal law 5 enforcement officials generally about a possible federal offense. Subjective proof that the victim actually or likely would have provided information to federal authorities is not required; the defendant's intent is what matters. Accord United States v. Wright, 536 F.3d 819, 824 (8th Cir.2008) (“the government need not prove

that the defendant knew a federal investigation was underway, or even contemplated, or that defendant intended to prevent the victim from communicating with federal officials” but “that at least some part of a defendant's motive in killing that victim was to prevent communication with law enforcement officials in the investigation of a possible federal crime”) (emphasis, citation, and internal quotation marks omitted); United States v. Harris, 498 F.3d 278, 286-87 (4th Cir.2007) (“So long as the information the defendant seeks to suppress actually relates to the commission or possible commission of a federal offense, the federal nexus requirement is established ․ Thus, under the plain meaning of the applicable statutory language, the government need not prove any state of mind regarding whether the potential investigation that a defendant sought to affect would be conducted by federal officers.”) (emphasis omitted); United States v. Galvan, 949 F.2d 777, 783 (5th Cir.1991) (“*T+he statute focuses on the defendant's intent: whether she thought she might be preventing [the witness's] future communication of information”) (emphasis added). We now join our sister circuits and apply the rationale in Veal, holding that the possible or potential communication to federal authorities of a possible federal crime is sufficient for purposes of section 1512(a)(1)(C). See id. at 1251-52, 1251 n. 6 26. Here, the federal nexus requirement was clearly satisfied. When Officer Horner discovered the group at the cemetery, they were clad in black and wearing gloves on a spring morning in Florida in a high crime area. Gamble testified that it was obvious that the group was in the process of preparing for illegal activity. Three of them, including Gamble (who Officer Horner knew from his previous robberies) had just committed a robbery affecting interstate commerce; all of them were conspiring to rob a bank; there was evidence in the car to indicate that they were going to (or had already) engaged in armed robbery; and the group had in its collective possession firearms, a stolen car, marijuana, and cocaine. These were all 7 federal crimes and could have led to a federal investigation and prosecution. These facts adequately support Fowler's conviction for violating § 1512(a)(1)(C). AFFIRMED. BARKETT, Circuit Judge:

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 hisroommate, 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.

sentenced to six years and one daypresidio mayor, the minimum penalty prescribed by law.

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.

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:

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 backsteps 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.

(2) Reasonable necessity of the means employed to prevent or repel it.

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.

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

(1) Illegal aggression.

(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.

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.

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 defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and

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; Yatesvs. 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-inlaw, 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 theAudiencia 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 correctionalfor 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.