THIRD DIVISION

petitioner after he refused, upon advice of counsel, to make any plea. [10] writing his right to be present in any and all stages of the case.

[7]

[8]

[9]

Petitioner waived in

[G.R. No. 121917. March 12, 1997]

ROBIN CARIO PADILLA @ ROBINHOOD PADILLA, petitioner, vs.COURT OF APPEALS and PEOPLE of the PHILIPPINES,respondents. DECISION FRANCISCO, J.: On October 26, 1992, high-powered firearms with live ammunitions were found in the possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.: "(1) One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live ammunitions; "(2) "(3) "(4) One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazine with ammunitions;

After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years [11] of reclusion perpetua, as maximum". Petitioner filed his notice of appeal on April 28, [12] [13] 1994. Pending the appeal in the respondent Court of Appeals, the Solicitor-General, convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The resolution of this motion was incorporated in the [14] now assailed respondent court's decision sustaining petitioner's conviction, the dispositive portion of which reads: "WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby AFFIRMED, and furthermore, the P200,000.00 bailbond posted by accused-appellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is hereby cancelled. The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal to the National Bureau of Prisons thru the Philippine National Police where the said accused-appellant shall remain under confinement pending resolution of his appeal, should he appeal to the Supreme Court. This shall be immediately executory. The Regional Trial Court is further directed to submit a report of compliance herewith. SO ORDERED."[15] Petitioner received a copy of this decision on July 26, 1995. On August 9, 1995 he filed a [17] "motion for reconsideration (and to recall the warrant of arrest)" but the same was denied by [18] respondent court in its September 20, 1995 Resolution, copy of which was received by petitioner on September 27, 1995. The next day, September 28, petitioner filed the instant [19] petition for review on certiorari with application for bail followed by two "supplemental [20] [21] petitions" filed by different counsels, a "second supplemental petition" and an urgent motion for the separate resolution of his application for bail. Again, the Solicitor[22] General sought the denial of the application for bail, to which the Court agreed in a [23] Resolution promulgated on July 31, 1996. The Court also granted the Solicitor-General's motion to file a consolidated comment on the petitions and thereafter required the petitioner to [24] file his reply. However, after his vigorous resistance and success on the intramural of bail (both in the respondent court and this Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a complete turnabout [25] by filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal. The People's detailed narration of facts, well-supported by evidence on record and given [26] credence by respondent court, is as follows: "At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his compadre Danny Perez were inside the Manukan sa Highway Restaurant in Sto. Kristo,
[16]

One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and Six additional live double action ammunitions of .38 caliber revolver."[1]

Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions under P.D. [2] [3] 1866 thru the following Information: "That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having the necessary authority and permit to carry and possess the same. ALL CONTRARY TO LAW."[4] The lower court then ordered the arrest of petitioner, but granted his application for [6] bail. During the arraignment on January 20, 1993, a plea of not guilty was entered for
[5]

Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along McArthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to remark that the vehicle might get into an accident considering the inclement weather. (p. 7, Ibid) In the local vernacular, he said thus: 'Ka bilis na, mumuran pa naman pota makaaksidente ya.' (p. 7, ibid). True enough, immediately after the vehicle had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a vehicle running very fast (pp. 7-8, ibid) followed by a sickening sound of the vehicle hitting something (p. 8, ibid). Danny Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that Manarang had been right in his observation (pp. 8-9, ibid). "Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway giving it a slight tilt to its side (pp. 9-10, ibid). Manarang, being a member of both the Spectrum, a civic group and the Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police of Angeles City (p. 10, ibid). He took out his radio and called the Viper, the radio controller of the Philippine National Police of Angeles City (p. 10, ibid). By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the general direction to the north (p. 11, ibid). "Manarang went to the location of the accident and found out that the vehicle had hit somebody (p. 11, ibid). "He asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle (p. 11 ibid). During the chase he was able to make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1993). He called the Viper through the radio once again (p. 34, ibid) reporting that a vehicle heading north with plate number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993). The Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio call flashed the message to all units of PNP Angeles City with the order to apprehend the vehicle (p. 20, ibid). One of the units of the PNP Angeles City reached by the alarm was its Patrol Division at Jake Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III and SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of Abacan bridge since it was the only passable way going to the north (pp. 8-9,ibid). It took them about ten (10) seconds to cover the distance between their office and the Abacan bridge (p. 9, ibid). "Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On board were SPO Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the vehicle with plate number PMA 777 (p. 10, ibid).

"In the meantime, Manarang continued to chase the vehicle which figured in the hit and run incident, even passing through a flooded portion of the MacArthur Highway two (2) feet deep in front of the Iglesia ni Kristo church but he could not catch up with the same vehicle (pp. 11-12, February 15, 1993). When he saw that the car he was chasing went towards Magalang, he proceeded to Abacan bridge because he knew Pulongmaragal was not passable (pp. 12-14, ibid). When he reached the Abacan bridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10, TSN, February 23, 1993). He approached them and informed them that there was a hit and run incident (p. 10, ibid). Upon learning that the two police officers already knew about the incident, Manarang went back to where he came from (pp. 10-11; ibid). When Manarang was in front of Tina's Restaurant, he saw the vehicle that had figured in the hit and run incident emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw that the license plate hanging in front of the vehicle bore the identifying number PMA 777 and he followed it (p. 15, ibid) towards the Abacan bridge. "Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993). When the vehicle was about twelve (12) meters away from their position, the two police officers boarded their Mobile car, switched on the engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid). They cut into the path of the vehicle forcing it to stop (p. 11, ibid). "SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23, 1993). SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its driver to alight (p. 12, ibid). The driver rolled down the window and put his head out while raising both his hands. They recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid). There was no one else with him inside the vehicle (p. 24). At that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind the vehicle of appellant (p. 14, ibid). SPO2 Miranda told appellant to alight to which appellant complied. Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p. 15, TSN, February 23, 1993), its butt protruding (p. 15, ibid). SPO2 Borja made the move to confiscate the gun but appellant held the former's hand alleging that the gun was covered by legal papers (p. 16, ibid). SPO2 Borja, however, insisted that if the gun really was covered by legal papers, it would have to be shown in the office (p. 16, ibid). After disarming appellant, SPO2 Borja told him about the hit and run incident which was angrily denied by appellant (p. 17, ibid). By that time, a crowd had formed at the place (p. 19, ibid). SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid). "While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8, 1993). As the most senior police officer in the group, SPO Mercado took over the matter and informed appellant that he was being arrested for the hit and run incident (p. 13,ibid). He pointed out to appellant the fact that the plate number of his vehicle was dangling and the railing and the hood were dented (p. 12, ibid). Appellant, however,arrogantly denied his misdeed and, instead, played with the crowd by holding their hands with one hand and pointing to SPO3

Borja with his right hand saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid). Because appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in appellant's back right pocket (p. 16,ibid). SPO Mercado saw this and so when appellant turned around as he was talking and proceeding to his vehicle, Mercado confiscated the magazine from appellant (pp. 16-17, ibid). Suspecting that appellant could also be carrying a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from going back to his vehicle by opening himself the door of appellant's vehicle (1617, ibid). He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the driver's seat. It had a long magazine filled with live bullets in a semi-automatic mode (pp. 17-21, ibid). He asked appellant for the papers covering the rifle and appellant answered angrily that they were at his home (pp. 26-27, ibid). SPO Mercado modified the arrest of appellant by including as its ground illegal possession of firearms (p. 28, ibid). SPO Mercado then read to appellant his constitutional rights (pp. 28-29, ibid). "The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third firearm, a pietro berreta pistol (Exhibit 'L') with a single round in its chamber and a magazine (pp. 33-35,ibid) loaded with seven (7) other live bullets. Appellant also voluntarily surrendered a black bag containing two additional long magazines and one short magazine(Exhibits M, N, and O, pp. 36-37, ibid). After appellant had been interrogated by the Chief of the Traffic Division, he was transferred to the Police Investigation Division at Sto. Rosario Street beside the City Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July 13, 1993). During the investigation, appellant admitted possession of the firearms stating that he used them for shooting (p. 14, ibid). He was not able to produce any permit to carry or memorandum receipt to cover the three firearms (pp. 16-18, TSN, January 25, 1994). "On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives Office (pp. 7-8, TSN, March 4, 1993). The Certification stated that the three firearms confiscated from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720, were not registered in the name of Robin C. Padilla (p. 6, ibid). A second Certification dated December 11, 1992 issued by Captain Espino stated that the three firearms were not also registered in the name of Robinhood C. Padilla (p. 10, ibid)." Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the firearms and ammunitions taken in the course thereof are inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal possession constitutes excessive and cruel punishment proscribed by the 1987 Constitution. After a careful review of the records of this case, the Court is convinced that petitioner's guilt of the crime charged stands on terra firma, notwithstanding the Solicitor-General's change of heart.
[27]

Anent the first defense, petitioner questions the legality of his arrest. There is no dispute that no warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at the Abacan bridge illegal. Warrantless arrests are sanctioned in the following instances:
[28]

"Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private personmay, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it. (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the [29] arresting officer or private person. Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run - an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner. It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also [30] when he "hears the disturbance created thereby AND proceeds at once to the scene." As testified to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver. After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacan bridge where he found responding policemen SPO2 Borja and SPO2 Miranda already positioned near [31] the bridge who effected the actual arrest of petitioner. Petitioner would nonetheless insist on the illegality of his arrest by arguing that the [32] policemen who actually arrested him were not at the scene of the hit and run. We beg to disagree. That Manarang decided to seek the aid of the policemen (who admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the apprehension. It was in fact the most prudent action Manarang could have taken rather than collaring petitioner by himself, inasmuch as policemen are unquestionably better trained and well-equipped in effecting an arrest of a suspect (like herein petitioner) who , in all probability, could have put up a degree of resistance which an untrained civilian may not be able to contain without endangering his own life. Moreover, it is a reality that curbing lawlessness gains more success when law enforcers function in collaboration with private citizens. It is precisely through this cooperation, that the offense herein involved fortunately did not become an additional entry to the long list of unreported and unsolved crimes.

It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the [33] police was confronted by an urgent need to render aid or take action. The exigent [34] circumstances of - hot pursuit, a fleeing suspect, a moving vehicle, the public place and the raining nighttime - all created a situation in which speed is essential and delay [35] improvident. The Court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the [36] vehicle has been engaged in criminal activity. Moreover, when caught in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm and ammunitions) and this time in the presence [37] of a peace officer. Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense. There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension. Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the [38] policemen saw for themselves the fast approaching Pajero of petitioner, its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings [39] thereof. These formed part of the arresting police officer's personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle involved in the hit and run incident. Verily then, the arresting police officers acted upon verified personal knowledge and [40] not on unreliable hearsay information. Furthermore, in accordance with settled jurisprudence, any objection, defect or [41] irregularity attending an arrest must be made before the accused enters his plea. Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, placed him in estoppel to assail the legality of his [42] arrest. Likewise, by applying for bail, petitioner patently waived such irregularities and [43] defects. We now go to the firearms and ammunitions seized from petitioner without a search warrant, the admissibility in evidence of which, we uphold. valid,
[44]

(c).

the evidence must be immediately apparent, and

(d). "plain view" justified mere seizure of evidence without further search.[48] 3. search of a moving vehicle.[49] Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity.[50] 4. 5. consented warrantless search, and customs search.

In conformity with respondent court's observation, it indeed appears that the authorities stumbled upon petitioner's firearms and ammunitions without even undertaking any active search which, as it is commonly understood, is a prying into hidden places for that which is [51] concealed. The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero. The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's [52] seat. Thus it has been held that: "(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti."[53] "Objects whose possession are prohibited by law inadvertently found in plain view are subject to seizure even without a warrant."[54] With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner [55] voluntarily surrendered them to the police. This latter gesture of petitioner indicated a waiver [56] of his right against the alleged search and seizure , and that his failure to quash the [57] information estopped him from assailing any purported defect. Even assuming that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search incidental to a lawful arrest (first instance). Once the lawful arrest was effected, the police may undertake a protective [58] [59] search of the passenger compartment and containers in the vehicle which are within [60] petitioner's grabbing distance regardless of the nature of the offense. This satisfied the twotiered test of an incidental search: (i) the item to be searched (vehicle) was within the

The five (5) well-settled instances when a warrantless search and seizure of property is are as follows: 1. warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court[45] and by prevailing jurisprudence[46], 2. Seizure of evidence in "plain view", the elements of which are:[47] (a). a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b). the evidence was inadvertently discovered by the police who had the right to be where they are;

arrestee's custody or area of immediate control and (ii) the search was contemporaneous [62] with the arrest. The products of that search are admissible evidence not excluded by the exclusionary rule. Another justification is a search of a moving vehicle (third instance). In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject [63] matter or the proceeds of some criminal offense. Anent his second defense, petitioner contends that he could not be convicted of violating P.D. 1866 because he is an appointed civilian agent authorized to possess and carry [64] the subject firearms and ammunition as evidenced by a Mission Order and Memorandum Receipt duly issued by PNP Supt. Rodialo Gumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del Sur. The contention lacks merit. In crimes involving illegal possession of firearm, two requisites must be established, viz.: (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to [65] possess. The first element is beyond dispute as the subject firearms and [66] ammunitions were seized from petitioner's possession via a valid warrantless search, identified and offered in evidence during trial. As to the second element, the same was convincingly proven by the prosecution. Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued under suspicious circumstances. On this score, we lift from respondent court's incisive observation. Thus: "Appellant's contention is predicated on the assumption that the Memorandum Receipts and Mission Order were issued before the subject firearms were seized and confiscated from him by the police officers in Angeles City. That is not so. The evidence adduced indicate that the Memorandum Receipts and Mission Order were prepared and executed long after appellant had been apprehended on October 26, 1992. "Appellant, when apprehended, could not show any document as proof of his authority to possess and carry the subject firearms. During the preliminary investigation of the charge against him for illegal possession of firearms and ammunitions he could not, despite the ample time given him, present any proper document showing his authority. If he had, in actuality, the Memorandum Receipts and Missions Order, he could have produced those documents easily, if not at the time of apprehension, at least during the preliminary investigation. But neither appellant nor his counsel inform the prosecutor that appellant is authorized to possess and carry the subject firearms under Memorandum Receipt and Mission Order. At the initial presentation of his evidence in court, appellant could have produced these documents to belie the charged against him. Appellant did not. He did not even take the witness stand to explain his possession of the subject firearms.

[61]

"Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no allegation of a Memorandum Receipts and Mission Order authorizing appellant to possess and carry the subject firearms. "At the initial presentation of appellant's evidence, the witness cited was one James Neneng to whom a subpoena was issued. Superintendent Gumtang was not even mentioned. James Neneng appeared in court but was not presented by the defense. Subsequent hearings were reset until the defense found Superintendent Gumtang who appeared in court without subpoena on January 13, 1994."[67] The Court is baffled why petitioner failed to produce and present the Mission Order and Memorandum Receipt if they were really issued and existing before his apprehension. Petitioner's alternative excuses that the subject firearms were intended for theatrical purposes, or that they were owned by the Presidential Security Group, or that his Mission Order and Memorandum Receipt were left at home, further compound their irregularity. As to be reasonably expected, an accused claiming innocence, like herein petitioner, would grab the earliest opportunity to present the Mission Order and Memorandum Receipt in question and save himself from the long and agonizing public trial and spare him from proffering inconsistent excuses. In fact, the Mission Order itself, as well as the LetterDirective of the AFP Chief of Staff, is explicit in providing that: "VIII. c. When a Mission Order is requested for verification by enforcement units/personnels such as PNP, Military Brigade and other Military Police Units of AFP, the Mission Order should be shown without resentment to avoid embarrassment and/or misunderstanding. "IX. d. Implicit to this Mission Order is the injunction that the confidential instruction will be carried out through all legal means and do not cover an actuation in violation of laws. In the latter event, this Mission Order is rendered inoperative in respect to such violation."[68] which directive petitioner failed to heed without cogent explanation. The authenticity and validity of the Mission Order and Memorandum Receipt, moreover, were ably controverted. Witness for the prosecution Police Supt. Durendes denied under oath his signature on the dorsal side of the Mission Order and declared further that he did not [69] authorize anyone to sign in his behalf. His surname thereon, we note, was glaringly [70] misspelled as "Durembes." In addition, only Unit Commanders and Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts under the Guidelines on the [71] Issuance of MOs, MRs, & PCFORs. PNP Supt. Rodialo Gumtang who issued petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy commander. Having emanated from an unauthorized source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force and effect. Besides, [72] the Mission Order covers "Recom 1-12-Baguio City," areas outside Supt. Gumtang's area of [73] responsibility thereby needing prior approval "by next higher Headquarters" which is absent in this case. The Memorandum Receipt is also unsupported by a certification as required by the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides that:

"No memorandum receipt shall be issued for a CCS firearms without corresponding certification from the corresponding Responsible Supply Officer of the appropriate AFP unit that such firearm has been officially taken up in that units property book, and that report of such action has been reported to higher AFP authority ." Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot present the corresponding certification as well. What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a [74] Mission Order, a fact admitted by petitioner's counsel. The implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus: "No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside residence unless he/she is included in the regular plantilla of the government agency involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency . Further, the civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically required the use of firearms(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, or at higher levels of command."[75] Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as follows: "If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for the service they are rendering." That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of evidence is accentuated all the more by the testimony and certification of the Chief of the Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's confiscated [76] firearms are not licensed or registered in the name of the petitioner. Thus: "Q. In all these files that you have just mentioned Mr. Witness, what did you find, if any? "A. I found that a certain Robin C. Padilla is a licensed registered owner of one 9 mm pistol, Smith and Wesson with Serial No. TCT 8214 and the following firearms being asked whether it is registered or not, I did not find any records, the M-16 and the caliber .357 and the caliber .380 but there is a firearm with the same serial number which is the same as that licensed and/or registered in the name of one Albert Villanueva Fallorina.

"Q. So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214? "A. Yes, sir. "Q. And the firearms that were the subject of this case are not listed in the names of the accused in this case? "A. Yes, sir. xxx xxx And the certification which provides as follows: Republic of the Philippines Department of the Interior and Local Government GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE FIREARMS AND EXPLOSIVES OFFICE Camp Crame, Quezon City "PNPFEO5 "C E R T I F I C A T I O N "TO WHOM IT MAY CONCERN: "THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214 covered by License No. RL M76C4476687. "Further certify that the following firearms are not registered with this Office per verification from available records on file this Office as of this date: M16 Baby Armalite SN-RP131120 Revolver Cal 357 SN-3219 Pistol Cal 380 Pietro Beretta SN-35723 "However, we have on file one Pistol Cal 380, Beretta with serial number 35723Y, licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered License. "This certification is issued pursuant to Subpoena from City of Angeles. 28 November 1992
[77]

xxx

"FOR THE CHIEF, FEO: (Sgd.) JOSE M. ESPINO Sr. PNP Chief, Records Branch" [78] In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the [79] [80] second element of illegal possession of firearm. InPeople vs. Tobias, we reiterated that such certification is sufficient to show that a person has in fact no license. From the foregoing discussion, the fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution. The certification may even be dispensed with in [81] the light of the evidence that an M-16 rifle and any short firearm higher than a .38 caliber [82] pistol, akin to the confiscated firearms, cannot be licensed to a civilian, as in the case of petitioner. The Court, therefore, entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason, and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded by the Court [83] with respect and finality. Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic ambience (sic) and a non-subversive context" and adds that respondent court should have applied instead the previous laws on illegal possession of firearms since the [84] reason for the penalty imposed under P.D. 1866 no longer exists. He stresses that the penalty of 17 years and 4 months to 21 years for simple illegal possession of firearm is cruel [85] and excessive in contravention of the Constitution. The contentions do not merit serious consideration. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense [86] for it is a rule that laws are repealed only by subsequent ones. Indeed, it is the duty of [87] judicial officers to respect and apply the law as it stands. And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner. Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment. The severity of a penalty does not ipso facto make the same cruel and excessive. Inspector, MARIO

"It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it has been held that to come under the ban, the punishment must be 'flagrantly and plainly oppressive', 'wholly disproportionate to the nature of the offense as to shock the moral sense of the community' "[88] It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within [89] statutory limits. Moreover, every law has in its favor the presumption of constitutionality. The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and [90] unequivocal breach of the Constitution, not a doubtful and argumentative implication, as in this case. In fact, the constitutionality of P.D. 1866 has been upheld twice by this [91] Court. Just recently, the Court declared that "the pertinent laws on illegal possession of [92] firearms [are not] contrary to any provision of the Constitution. . ." Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us. Courts are not concerned with the wisdom, efficacy or morality of laws. That question falls exclusively within the province of Congress which enacts them and the Chief Executive who approves or vetoes them. The only function of the courts, we reiterate, is to interpret and apply the laws. With respect to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day of reclusion temporal, as minimum, to 21 years ofreclusion perpetua, as maximum), we reduce the same in line with the fairly recent case of People v. [93] Lian where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20) of reclusion temporal, as maximum. This is discernible from the following explanation by the Court: "In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In accordance with the doctrine regarding special laws explained in People v. Simon,[94] although Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised Penal Code, hence the rules in said Code for graduating by degrees or determining the proper period should be applied. Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years. "This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum of the range of the indeterminate sentence. The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion temporalin its medium period.[95]

WHEREFORE, premises considered, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the crime of simple illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty is MODIFIED to ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum. SO ORDERED Narvasa, C.J. (Chairman), Davide, Jr., Melo, and Panganiban, concur.

RECOMMENDED BY: Sgd. GUMTANG

APPROVED BY: RODALIO SUPT (CSP) PNP A.

29 Sept. 1992 Mission Order Number 29-9-92-B To: PSUPT GREGORIO DUREMBES SO ROBIN PADILLA -POSTI. PROCEED TO: Camp Crame, NCR, Recom 1-12-Baguio City

II. PURPOSE: To intensify Int'l coverage and to negotiate the imdte. surrender of Father Frank Navarro (rebel priest), believed attending conference in Baguio City. (CPP/NPA). III.DURATION: FROM: 29 Sept to 31 Oct 1992. IV. AUTHORIZE TO WEAR THE FOLLOWING UNIFORM/ATTIRE: (x) KHAKI ( ) HBT (x) CIVILIAN

V. AUTHORIZED TO CARRY THE FOLLOWING FIREARMS: NO. LIC OR AMMO MR MAKE KIND CAL SER.

----------------------------------------------------------------------------------------------LIC or MR issued Firearms & Ammos -x-x-x-x-x-x Nothing Follows x-x-x-x-x-x-x-x ------------------------------------------------------------------------------------------------

Republic SUPREME Manila FIRST DIVISION

of

the

Philippines COURT

ESG Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi. CHUCHI Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m. ESG Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita). CHUCHI Itutuloy ko na M'am sana ang duty ko. ESG Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

G.R. No. 93833 September 28, 1995 SOCORRO D. RAMIREZ, petitioner, vs. HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.: A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs 1 and public policy." In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of the 2 confrontation made by petitioner. The transcript reads as follows: Plaintiff Soccoro D. Ramirez (Chuchi) Good Afternoon M'am. Defendant Ester S. Garcia (ESG) Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo. CHUCHI Kasi, naka duty ako noon. ESG Tapos iniwan no. (Sic) CHUCHI Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon

ESG Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa. CHUCHI Kumuha kami ng exam noon. ESG Oo, pero hindi ka papasa. CHUCHI Eh, bakit ako ang nakuha ni Dr. Tamayo ESG Kukunin ka kasi ako. CHUCHI Eh, di sana ESG Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung hindi ako. CHUCHI Mag-eexplain ako. ESG Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko. ESG Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.

CHUCHI Kasi M'am, binbalikan ako ng mga taga Union. ESG Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na. CHUCHI Ina-ano ko m'am na utang na loob. ESG Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako. CHUCHI Paano kita nilapastanganan? ESG Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. 3 Magsumbong ka. As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith: INFORMATION The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed as follows: That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate in writing the contents of the said recording to other person. Contrary to law. Pasay City, Metro Manila, September 16, 1988. MARIANO Asst. City Fiscal M. CUNETA

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication by a personother than a 4 participant to the communication. From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989. On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3, 1989 null and void, and holding that: [T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the information based on the ground that the facts alleged do not constitute an offense, the respondent judge acted in 5 grave abuse of discretion correctible by certiorari. Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which 6 respondent Court of Appeals denied in its Resolution dated June 19, 1990. Hence, the instant petition. Petitioner vigorously argues, as her "main and principal issue" that the applicable provision of Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping 8 of a private conversation by a party other than those involved in the communication. In relation to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 9 4200. Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of secretly taping 10 her conversation with private respondent was not illegal under the said act. We disagree. First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either 11 12 impossible or absurb or would lead to an injustice. Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides:
7

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkietalkie or tape recorder, or however otherwise described. The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the 13 latter (will) qualify as a violator" under this provision of R.A. 4200. A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons. Thus: xxx xxx xxx Senator Taada: That qualified only "overhear". Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and involved not criminal cases that would be mentioned under section 3 but would cover, for example civil cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside? Senator Taada: That is covered by the purview of this bill, Your Honor. Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or special proceedings?

Senator Taada: That is right. This is a complete ban on tape recorded conversations taken without the authorization of all the parties. Senator Padilla: Now, would that be reasonable, your Honor? Senator Taada: I believe it is reasonable because it is not sporting to record the observation of one without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I believe that all the parties should know that the observations are being recorded. Senator Padilla: This might reduce the utility of recorders. Senator Taada: Well no. For example, I was to say that in meetings of the board of directors where a tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose remarks and observations are being made should know that the observations are being recorded. Senator Padilla: Now, I can understand. Senator Taada: That is why when we take statements of persons, we say: "Please be informed that whatever you say here may be used against you." That is fairness and that is what we demand. Now, in spite of that warning, he makes damaging statements against his own interest, well, he cannot complain any more. But if you are going to take a recording of the observations and remarks of a person without him knowing that it is being taped or recorded, without him knowing that what is being recorded may be used against him, I think it is unfair. xxx xxx xxx (Congression Record, Vol. III, No. 31, p. 584, March 12, 1964) Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly.

Senator Taada: Well, that particular aspect is not contemplated by the bill. It is the communication between one person and another person not between a speaker and a public. xxx xxx xxx (Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964) xxx xxx xxx The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish. Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well 14 as its communication to a third person should be professed." Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes 15 the act of sharing or imparting, as in a conversation, or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols 16 (as language signs or gestures)" These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Taada in his Explanatory Note to the bill quoted below: It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual

nature of conversations as well the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of communication between individuals free from every 17 unjustifiable intrusion by whatever means. In Gaanan vs. Intermediate Appellate Court, a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated 19 therein, following the principle that "penal statutes must be construed strictly in favor of the 20 accused." The instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications with the use of tape-recorders as among the acts punishable. WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner. SO ORDERED. Padilla, Davide, Jr. and Bellosillo JJ., concur. Hermosisima, Jr., J., is on leave.
18

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-33284 April 20, 1989 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLANDO CENTENO, ET AL., defendants. ROLANDO CENTENO, defendant- appellant. The Solicitor General for plaintiff-appellee. Rodrigo Law Office for defendant-appellant.

killed by the accused-appellant were presented by the prosecution. These were Dionisio Violago and Eulogio Villanueva, who were both friends of the victim. According to Violago, he and Santos, together with their other companions, were in the store of one Aling Goreng when Patrolman Valeriano Reyes approached Santos and told the young man to come with him. Santos demurred, protesting that he had done nothing wrong, whereupon Reyes boxed him in the chest and forcibly brought him to the police station. There Santos loudly objected to his detention, prompting Police Chief Centeno to say, " Matigas ka yatang talaga," although he relented later and allowed him to go home. But as Santos was leaving, Centeno had a change of mind and asked Reyes to bring Santos back. Reyes was holding Santos's arm when Centeno administered the first karate blow on the nape of Santos's neck that made the victim fall forward on the backrest of a bench. This was followed by two more karate blows that crumpled him to the cement floor where he lay prostrate and motionless. On Centeno's order, two policemen then picked up Santos and took him inside the locker room adjacent to the municipal jail. 3 Villanueva corroborated Violago and said he cried out, "Why are you doing this to my friend?" when he saw Santos being mauled by Centeno. He also declared that Santos was felled with three karate blows from Centeno. This witness claimed he got a glass of water and gave it to Santos, who could not drink it any more as he was already dying then. He felt Santos's pulse but there was none. He opened Santos's shirt and put his ear to his chest but could hear no heartbeat. He said that the other persons who witnessed the killing, besides the policemen, were Violago, Romy Salao and Serafin Punzalan. 4 The theory of the defense was that Santos was so intoxicated that he reeled and fell and hit his head and suffered the internal brain hemorrhage that killed him. To support this claim, it introduced Mercedes Bautista, chief forensic chemist of the NBI, who testified that at the time of Santos's death he had 0.21% of alcohol in his blood. She declared on cross-examination that the effect of such quantity would vary according to the person's physical condition although there would surely be emotional instability in every case. 5 The defense conjectured that as a result of his inebriation, Santos must have crashed down and hurt his head, resulting in internal bleeding. Valeriano Reyes, the other accused, testified that after they had brought Santos to the locker room, they heard a noise ("kalabog") suggesting that Santos had hit something; and sure enough they found him dying on the floor when they went in to investigate. 6 It is doubtful though how they could have heard the alleged sound, considering the thick concrete walls of the room and the fact that they were then some ten meters away. 7 There is also the argument that no external injuries were found on the nape of the neck, where the karate blows were administered although there were abrasions and contusions elsewhere in the victim's head. As Dr. Vidal explained, however, even if no marks were left on the neck,

CRUZ, J.: It all started, innocuously enough, with a drinking spree. On that afternoon of December 1, 1968, Rolando Santos was enjoying himself with some friends and plenty of beer that he eventually could not carry. Within the hour, he would be dead of a massive brain hemorrhage. The venue would be the municipal building itself. And the police chief himself, together with one of his policemen, would be accused of murdering him. How Santos died is the question we have to settle. The prosecution says he was killed with karate blows dealt by the accused-appellant. The defense denies this. It says Santos drunkenly staggered and fell and hit his head and bled to death. The trial court believed the prosecution and convicted the police chief while absolving his coaccused. 1 Rolando Centeno is now before us on appeal of his conviction. The medical evidence is not disputed. It is accepted that Santos died as a result of internal bleeding in the brain due to trauma. The victim's head showed various contusions and abrasions but not in the nape of the neck where the karate blows were allegedly delivered. 2 Besides Dr. Plaridel F. Vidal, the NBI medico-legal officer who testified on the autopsy of Santos, two important witnesses who gave a first-hand version of how Santos was allegedly

karate blows thereon could cause the generalized and extensive bleedings that caused the victim's death. Thus: Q Will you please explain, if a karate blow delivered on the nape of a person without necessarily producing contusions or abrasions will cause brain hemorrhage? A Depending on the position of the fist that one will apply on the person. A karate blow will produce inner injury but without any outside injury especially this portion of the hand, (witness pointing to the hypothenar) unlike this portion (witness pointing to the knuckles) and especially when the karate blows delivered with the hypothenar on a muscular portion of the body like the nape, there will be no external injuries but the injury is internal. To further explain, I will cite to you an example. The boxers who use gloves on their hands and when they will deliver blows on a person, that person will not sustain external injuries but there is severe injury inside the brain and that could justify that karate blows will not produce external injuries but internal injuries. 8 The defense itself submitted that Santos shouted drunkenly within hearing distance of Centeno and Reyes, "Putang inang mga pulis iyan! Walang kuwenta sa akin iyan!" 9 They claimed to be tolerant and simply admonished him to go home, but subsequent events showed they were really annoyed by his remarks. This was the motive that prompted Reyes to drag Santos to the municipal building and led Centeno later to kill him. We are satisfied that Violago and Villanueva were telling the truth about the killing of their friend although there were indeed inconsistencies in their statements. These were minor lapses only and did not impair the essential truthfulness of their narrations. As for the defense, its explanation of the death of Santos while he was in the custody of the police is hardly plausible and mainly speculative. Murder cannot be excused on such improbable conjectures Murder it was indeed with the qualifying circumstance of treachery. There was alevosia because Santos was suddenly attacked from behind when in his weakened and intoxicated condition, coupled with the fact that his arm was then being held by Reyes, he could not defend himself. The accused-appellant had employed means aimed at achieving his purpose without risk to himself from any defense the victim could have made. Even assuming there was abuse of superior strength, on which issue we do not have to rule here, this aggravating circumstance is deemed absorbed by treachery. As for the mitigating circumstances claimed by the defense, the Court holds that they cannot be allowed. The derogatory statement made by Santos which so irritated Centeno did not constitute such a grave provocation as to warrant the lessening of his penalty for reacting as he did in punishing the victim to death. Neither can Centeno argue now that he had not intended to commit so grave a wrong as the actual killing of Santos as he knew, or should have known, that the karate chops on the nape of the neck would have a lethal effect upon the defenseless and drunken victim.

There being no generic aggravating or mitigating circumstances, the term of imprisonment was correctly fixed atreclusion perpetua, the medium penalty for murder. The civil indemnity is, however, increased to P30,000.00 consistent with present policy. It was not only Rolando Santos who was intoxicated when he died at 22 on December 1, 1968. There was another kind of drunkenness that afflicted the chief of police, who misus WHEREFORE, the appealed judgment is AFFIRMED except as to the civil indemnity, which is increased to P30,000.00. Costs against the accused-appellant. It is so ordered. Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

amount of P30.000.00 without subsidiary imprisonment in case of insolvency; and to pay the costs. G.R. No. 101215 July 30, 1993 SO ORDERED. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALFREDO SALVADOR, ET AL., * accused, ALFREDO SALVADOR, accused-appellant. The Solicitor General for plaintiff-appellee. Froilan L. Valdez for accused-appellant. BIDIN, J.: Appellant Alfredo Salvador an co-accused Joey Adap, Augusto Alimurong, Jimmy Agustin and Armin Aladdin were charged before the Regional Trial Court, Fourth Judicial Region, Branch 23, Trece Martires City with the crime of Murder in an information allegedly committed as follows: That on or about October 14, 1984, in the Municipality of Gen. Trias, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the aforesaid accused, conspiring together, acting jointly and assisting one another, with intent to kill, with treachery and evident premeditation, did then and there, wilfully, unlawfully and feloniously, assault and attack Orlando Grepo with the use of a piece of wood commonly known as "dos por dos", hallow (sic) block, fist and foot blows causing the victim to suffer injuries on his head and other parts of his body, resulting to his death, to the damage and prejudice of the heirs of Orlando Grepo. The aggravating circumstances of nighttime and abuse of superior strength were present in the commission of the offense. CONTARY TO LAW. Only Alfredo Salvador was apprehended by the Cavite INP Command while his co-accused have remained at large (Ibid., p. 34). Upon arraignment, Salvador pleaded not quilty to the offense charged. After trial, judgment was rendered convicting appellant Salvador, the decretal portion of which reads: WHEREFORE, this court finds accused Alfredo Salvador GUILTY beyond reasonable doubt of the crime of Murder and sentences him to suffer the penalty of Life imprisonment; to indemnify the heirs of Orlando Grepo in the Records disclose that at around 9:30 in the evening of October 14, 1984, prosecution witness Joel Duran was walking with Alberto Villablanca on their way home from Bahay-Kubo in the town plaza of Gen. Trias, Cavite. Along Prinza Street, they saw from a distance of about six meters, Orlando Grepo being mauled by five persons. Through the light of the electric lamp post and the vehicles passing by, Joel recognized these assailants as Joey Adap, Alfredo Salvador, Jimmy Agustin, Augusto Alimurong and Armin Aladdin. The sheer number of assailants deterred Joel and Alberto from helping their childhood friend Orlando. The five attackers were boxing Orlando and when he fell with his face to the ground, they kicked him. Then Joey Adap hit Orlando with a "dos por dos" (piece of wood ) and Alfredo Salvador dropped a hollow block on his back. Joel and Alberto shouted for help and upon seeing them, the assailants ran away. Councilor Leonardo Gozo, who responded to Joel's shouts for help, assisted Joel and Alberto in bringing Orlando to the hospital in Pinagkatipunan (TSN, August 25, 1984, pp. 4-9; 21-23). Orlando was brought to the Medicare Community Hospital in Gen. Trias where Dr. Charito Maldos Gozo attended to him. Dr. Gozo found him to be a "walking patient" but aside from his bruises and contusions, Orlando was complaining of a headache (TSN, January 29, 1987, pp. 4; 8-13). In the medical certificate she issued on October 15, 1984, Dr. Gozo stated that 17year-old Orlando Grepo had contusion, hematoma and abrasion on the 4th intercostal lateral side left, another contusion on the right temporal parietal area and a third contusion and hematoma on the occipital region. Dr. Gozo diagnosed that the healing period for these injuries would last from nine to fourteen days "barring complications" (Exh. F). A neighbor of Orlando, Dr. Gozo knew that during the two-week period after she treated him Orlando was complaining of severe headache and "off and on" fever (TSN. January 29, 1987, p.13). On November 4, 1984, Grepo was brought to the clinic of Dr. Jocelyn Tirol Dignos in Rosario, Cavite. Grepo was perspiring a lot and had cold, clammy skin specially on his left extremities. He had rolling eyeballs and was in an unconcious shock-like state. Since he had high-grade fever running to 42.2 degrees Centigrade, he stayed in Dr. Dignos' clinic for only two hours (TSN, September 26, 1986, p.5). In the medical certificate she issued, Dr. Dignos also stated that Grepo had convulsive seizures and that he had "meningo-encephalities of undetermined origin" (Exh. D). According to Dr. Dignos, said diagnosis was actually made by Dr. Ovillo, a specialist to whom she referred as the victim was showing signs and symptoms of brain damage. Because they were not aware that Orlando had been a victim of a mauling incident two weeks ago and there was then an epidemic of typhoid fever, they entertained typhoid as Grepo's possible ailment

(TSN September 26, 1986, pp. 7-9). But upon learning of the mauling incident, they diagnosed Grepo's ailment as "meningo encephalitis secondary to trauma" ( Ibid., p. 16). Moreover, they learned that Dr. Apostol of Gen. Trias, Cavite had given Grepo two grams of chloro ampenicol per day and therefore, if the ailment was really typhoid. Grepo's fever would have then subsided (Ibid., pp. 15-17). They would have conducted more tests but since Grepo had become bluish and had difficulty in breathing, they decide to have him transferred to the Manila Medical Center (Ibid., p.17) where the victim finally expired on November 5, 1984 (TSN, April 23, 1987 p.3). As aforesaid, the trial court rendered a judgment of conviction against Salvador specifically finding him to be "one of those instrumental in inflicting the fatal wounds which resulted in the death of Orlando Grepo." Appellant claims that he was with his family at home watching television at the time the mauling incident took place. His alibi was corroborated by his sister, Edita Santores, who testified that appellant watched TV until 10:00 p.m. and immediately went to bed thereafter. Previous to his testimony in open court, however, appellant executed an affidavit stating that at around 9:00 o'clock in the evening of October 14, 1984, he was walking from the school with his friend Willy Buclatin when they saw Orlando Grepo walking with three persons and when they reached Prinza St., there was a melee ("bigla na lamang nagkagulo"). The Court is therefore presented with two contradictory statements of the accused. One involving alibi and the other which is practically denial. Aggrieved by the decision, Salvador interposed this appeal making the following assignments of errors: I. II. THE COURT A QUO ERRED IN NOT GIVING CREDENCE TO THE EVIDENCE PRESENTED BY THE DEFENSE. THE COURT A QUO ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE OF THE PROSECUTION. (Appellant's Brief, p.1)

[1991]). After a review of the records, We find no reason to depart from these principles in the instant appeal. Anchored on denial and alibi, the defense had not overcome the prosecution's solid proof beyond reasonable doubt of appellant's complicity in the fatal mauling of Orlando Grepo. In the first place, the defense had not shown that it was physically impossible for Salvador to be at the scene of the crime at the time it was committed (People vs. Bicog. 187 SCRA 556 [1990]; People vs. Pio Cantuba, 183 SCRA 289 [1990]; People vs. Tamayo, 183 SCRA 375 [1990]; People vs. Andres, 155 SCRA 290 [1987]; People vs. Ornoza, 151 SCRA 495 [1987]; People vs. Tuando, 150 SCRA 8 [1987]); People vs. Petil, 149 SCRA 92 [1987]. While Salvador was on the witness stand, the defense counsel understandably did not ask him about the distance of the scene of the crime from the Salvador residence where he was allegedly watching TV. Neither had the prosecution ferreted this information from Salvador on cross-examination. For her part, all that Editha Santores could say was that the scene of the crime was "far from us" when asked by the prosecution if the distance between the two places was about fifty meters (TSN, September 30, 1987, p.12). Considering, however, that appellant Salvador was himself a resident of Prinza St. (TSN, August 28, 1987, p.2) where the crime occurred, his alibi must fail. Alibi is unconvincing when the distance from the place where the accused was and the scene of the crime can be negotiated within minutes (People vs. Marmita, Jr., 180 SCRA 723 [1989]). But what sealed appellant's conviction is the fact that he was recognized by Joel Duran as one of the five persons who ganged up on Grepo. Denial and alibi cannot prevail over the prosecution witness' positive identification of the accused as a perpetrator of the crime (Collado vs. IAC, 206 SCRA 207 [1992]; People vs. Bocatcat, SR., 188 SCRA 175 [1990]; People vs. Cirilo, Jr., 156 SCRA 397 [1987]; People vs. Danes, 131 SCRA 286 [1984]; People vs. Cortez, 57 SCRA 308 [1974]; People vs. Esmael, 37 SCRA 601 [1971]). Worth nothing is the fact that the defense did not even try to discredit prosecution witness Joel Duran whose damaging testimony was the principal foundation of the prosecution theory. Unsullied, Duran's testimony must therefore be given its due weight and credit. However, one other aspect of the crime which the defense, even in the instant appeal, has failed to argue in favor of appellant is the fact that the appellant had been charged with and convicted of, the crime of murder for the killing of Orlando Grepo. Art. 248 of the Revised Penal Code provides that to be liable for murder, an accused must be proven to have committed the killing of another person under the attendant circumstances specified therein. Of these circumstances, the information alleges treachery and evident premeditation to qualify the killing to murder. It is unfortunate that the trial court failed to discuss the presence or absence of these qualifying circumstances. However, from the evidence on record, treachery cannot be appreciated. Sole eyewitness Joel Duran testified that while he and Alberto Villablanca were walking along Prinza Street, they saw Grepo being mauled by five persons. While Duran may have

A finding of sufficiency of the evidence to establish guilt by proof beyond reasonable doubt is one fact. As such, its review by the appellate court must be guided by the principle that, unless arbitrary or without sufficient basis, the findings of the trial court on question of fact are accorded the highest respect on appeal if not regarded as conclusive (People vs. Alitao, 194 SCRA 120 [1991]; People vs. Millarpe, 134 SCRA 555 [1985]; People vs. Lopez, 132 SCRA 188 [1984]. In the same manner, the credibility of witnesses is the province of the trial court who is in a better position to examine real evidence as well as observe the demeanor of the witnesses (People vs. Lardizabal, 204 SCRA 320 [1991]; People vs. Vinas, 202 SCRA 720

witnessed the incident in progress, he did not testify as to how it began. As the Court held in People vs. Tiozon (198 SCRA 368 [1991]), treachery cannot be considered where the lone witness did not see the commencement of the assault. The importance of such testimony cannot be overemphasized considering that treachery cannot be presumed nor established from mere suppositions. In the same manner, evident premeditation cannot be appreciated to qualify the killing to murder in the absence of direct evidenct of the planning and preparation to kill or when the plan was conceived (People vs. Wenceslao, 212 SCRA 560 [1992]). Thus, in the absence of any qualifying circumstance, the crime committed is homicide under Art 249 of the Revised Penal Code and not murder. As to aggravating circumstances, the information alleges nighttime and abuse of superior strength. To be appreciated as an aggravating circumstance, there must be a convincing showing that the accused had purposely sought nighttime in order to facilitate the commission of the crime or to prevent its discovery or to evade the culprit's capture (People vs. Rodriguez, 193 SCRA 231 [1991]). There is, however, no proof at all, much more a convincing one, to warrant appreciation of nighttime as an aggravating circumstance. Abuse of superior strength, a qualifying circumstance in murder, was alleged in the information as an aggravating circumstance only. ** Mere numerical superiority does not always mean abuse of superiority to qualify the killing to murder. Appellant is liable for the crime even if he had not intended to kill Orlando Grepo. This is because he participated in the concerted effort of mauling the victim, which was proven beyond reasonable doubt, in furtherance of a common design to inflict physical harm on Grepo. But where the attack commenced, the fact there are four assailants would constitute abuse of superiority (Aquino, The Revised Penal Code, Vol. I, 1987 ed., p. 377, citing, among others, U.S. vs. Banagale, 24 Phil. 69 [1913]). Thus, the homicide committed in this case is attended by the aggravating circumstance of abuse of superiority as five persons mauled the unarmed and defenseless victim Orlando Grepo (People vs. Ocimar, 212 SCRA 646 [1992]). Art. 4 of the Revised Penal Code provides 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." The essential requisites of Art. 4 are: (a) that an intentional felony has been committed, and (b) that the wrong done to the aggrieved party be the direct, natural and logical consequence of the felony committed by the offender (People vs. Iligan, 191 SCRA 643, 651 [1990] citing People vs. Mananquil, 132 SCRA 196, 207 [1984]). All these requisites are present in this case. The intentional felony was the mauling of Grepo and, in the case of appellant, his dropping of the hollow block on the fallen and hapless victim. The latter's death had been the direct, natural and logical consequence of the felony as shown by the evidence provided by the doctors who testified for the prosecution.

Under Art. 249 of the Revised Penal Code, homicide is punishable by reclusion temporal. In view of the presence of the aggravating circumstance of abuse of superior strength, which is not offset by any mitigating circumstance, the penalty shall be imposed in its maximum period (Art. 64 (3), Revised Penal Code). Parenthetically, the lower court erroneously imposed the penalty of "life imprisonment" for murder. The proper penalty for murder under Art. 248 is reclusion perpetua and not "life imprisonment." The need to apply the correct penalty is dictated by the fact that in appropriate cases, a penalty under the Revised Penal Code carries with it accessory penalties (See: People vs. Cruda, 212 SCRA 125 [1992]). Hence, the appropriate penalty prescribed by law for the crime of homicide in the case at bar is the maximum period of reclusion temporal which is 17 years, 4 months and 1 day to 20 years. Applying the Indeterminate Sentence Law, the imposable penalty is ten (10) years and one (1) day of prision mayor maximum as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum. Wherefore, the decision appealed from is hereby MODIFIED to the extent that appellant Alfredo Salvador is hereby declared guilty of the crime of homicide and is hereby ordered to suffer the indeterminate sentence of ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum. The civil indemnity is hereby increased to P50,000.00 in line with current jurisprudence. SO ORDERED. Feliciano, Romero, Melo and Vitug, JJ., concur. # Footnotes* Actual title. ** If not alleged as a qualifying circumstances, abuse of superior strength would be treated as a generic aggravating circumstance if proven at the trial (Aquino, The Revised Penal Code, Vol. I, 1987 ed., p. 376 citing People vs. Acusar, 82 Phil. 490 [1948] and People vs. Peje, 99 Phil. 1052 [1956].ed his power and lawlessly took a life. WHEREFORE, the appealed judgment is AFFIRMED except as to the civil indemnity, which is increased to P30,000.00. Costs against the accused-appellant. It is so ordered. Narvasa (Chairman), Gancayco, Grio-Aquino and Medialdea, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. L-5272

March 19, 1910 STATES, plaintiff-appellee,

THE UNITED vs. AH CHONG, defendant-appellant. Gibb & Gale, Attorney-General Villamor, for appellee. CARSON, J.: for

appellant.

probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds. There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection. The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibaez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man. The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings. No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber. Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day. The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law.

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

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

would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. To this question we think there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith. In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.) The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express provisions modifying the general rule, such as are those touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act committed is different from that which he intended to commit. And it is to be observed that even these exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows the same proportion; it is greater or less according as the crime in its own nature

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances: (1) Illegal aggression. (2) Reasonable necessity of the means employed to prevent or repel it. (3) Lack of sufficient provocation on the part of the person defending himself. Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one, under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings defendant would have been wholly justified in using any available weapon to defend himself from such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first blow. But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge. The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be, but which

does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the corruption was of one particular form or another. Article 1 of the Penal Code is as follows: Crimes or misdemeanors are voluntary acts and ommissions punished by law. Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear. An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the wrongful act committed be different from that which he had intended to commit. The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and includes the words " con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.) Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by Viada are more apparent than real. Silvela, in discussing the doctrine herein laid down, says: In fact, it is sufficient to remember the first article, which declared that where there is no intention there is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.) And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime. And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial church, there can be no crime because of the lack of the necessary element or criminal intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal negligence." And to the same effect in its sentence of December 30, 1896, it made use of the following language: . . . Considering that the moral element of the crime, that is, intent or malice or their absence in the commission of an act defined and punished by law as criminal, is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court. That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568, which are as follows: He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime. He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees. In the application of these penalties the courts shall proceed according to their discretion, without being subject to the rules prescribed in article 81. The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper. The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the direct inference from its provisions is that the commission of the acts

contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor. The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statute to designate a form of criminal intent. It has been said that while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully," but "the difference between them is not great;" the word "malice" not often being understood to require general malevolence toward a particular individual, and signifying rather the intent from our legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.) But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes generally construed to imply a criminal intent, we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present this doctrine: In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In controversies between private parties the quo animo with which a thing was done is sometimes important, not always; but crime proceeds only from a criminal mind. So that There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exists. We find this doctrine confirmed by Legal maxims. The ancient wisdom of the law, equally with the modern, is distinct on this subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus , "an act done by me against my

will is not my act;" and others of the like sort. In this, as just said, criminal jurisprudence differs from civil. So also Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance takes the place of justice, every guard around the innocent is cast down. But with the return of reason comes the public voice that where the mind is pure, he who differs in act from his neighbors does not offend. And In the spontaneous judgment which springs from the nature given by God to man, no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil. And whenever a person is made to suffer a punishment which the community deems not his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.) Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer. Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.) But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or

mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.) Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the intent, criminal or other wise, upon which he acted. If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts which will justify a killing or, in terms more nicely in accord with the principles on which the rule is founded, if without fault or carelessness he does believe them he is legally guiltless of the homicide; though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself correctly according to what he thus supposes the facts to be the law will not punish him though they are in truth otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.) The common illustration in the American and English textbooks of the application of this rule is the case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code, that the " act punished by law" was committed "voluntarily."

Parson, C.J., in the Massachusetts court, once said: If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposition killed him, although it should afterwards appear that there was no such design, it will not be murder, but it will be either manslaughter or excusable homicide, according to the degree of caution used and the probable grounds of such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.) In this case, Parker, J., charging the petit jury, enforced the doctrine as follows: A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.) To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar. QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law, to whom he rendered assistance as soon as he learned his identity, and who died in about six days in consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the

circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more especially because his assailant was unknown, he should have defended himself, and in doing so with the same stick with which he was attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) . QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this homicide, as having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the

darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.) QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.) A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under his charge. The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de oficio. So ordered. Johnson Moreland Arellano, C.J., and Mapa, J., dissent. and Elliott, JJ., concur.

Separate Opinions TORRES, J., dissenting: The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568 of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and while the act was done without malice or criminal intent it was, however, executed with real negligence, for the acts committed by the deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person who was accustomed to enter said room, without any justifiable motive. By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be sentenced to the penalty of one year and one month of prision correctional, to suffer the accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with the costs of both instances, thereby reversing the judgment appealed from.