Guevarra Vs Almodovar

476
SUPREME COURT REPORTS ANNOTATED
Guevarra vs. Almodovar
G.R. No. 75256. January 26, 1989.*
JOHN PHILIP GUEVARRA, petitioner, vs. HONORABLE IGNACIO

ALMODOVAR, respondent.
Criminal Law; Homicide through reckless imprudence; Discernment and
intent are different concepts; Definition of discernment and intent.—On the
contrary, the Solicitor General insists that discernment and intent are two
different concepts. We agree with the Solicitor General’s view; the two
terms should not be confused. The word “intent” has been defined as "(a)
design; a determination to do a certain thing; an aim; the purpose of the
mind, including such knowledge as is essential to such intent;. . .; the design
resolve, or determination with which a person acts. (46 CJS Intent p. 1103.)
It is this intent which comprises the third element of dolo as a means of
committing a felony, freedom and intelligence being the other two. On the
other hand, We have defined the term “discernment,” as used in Article
12(3) of the PRC, in the old case of People vs. Doquena, 68 Phil. 580
(1939), in this wise: “The discernment that constitutes an exception to the
exemption from criminal liability of a minor under fifteen years of age but
over nine, who commits an act prohibited by law, is his mental capacity to
understand the difference between right and wrong . . ." From the foregoing,
it is clear that the terms “intent” and “discernment” convey two distinct
thoughts. While both are products of the mental processes within a person,
the former refers to the desired effect of one’s act while the latter relates to
the moral significance that person ascribes to the said act.
Same; Same; Same; Same; Basic reason behind the enactment of the
exempting circumstances embodied in Art. 12 of the Revised Penal Code.—
ln further outlining the distinction between the words “in-
_______________
* SECOND DIVISION.
477
VOL. 169, JANUARY 26, 1989
477
tent” and “discernment,” it is worthy to note the basic reason behind the
enactment of the exempting circumstances embodied in Article 12 of the
RPC; the complete absence of intelligence, freedom of action, or intent, or
on the absence of negligence on the part of the accused. In expounding on
intelligence as the second element of dolus, Albert has stated: “The second
element of dolus is intelligence; without this power, necessary to determine
the morality of human acts to distinguish a licit from an illicit act, no crime
can exist, and because... the infant (has) no intelligence, the law exempts
(him) from criminal liability.”
Same; Same; Same; Same; Minors nine years of age and below are not
capable of performing a criminal act, while minors above nine years of age
but below 15 are not absolutely exempt; They are presumed to be without
criminal capacity but it could be proven that they acted with discernment.—
It is for this reason, therefore, why minors nine years of age and below are
not capable of performing a criminal act. On the other hand, minors above
nine years of age but below fifteen are not absolutely exempt. However, they
are presumed to be without criminal capacity, but which presumption may
be rebutted if it could be proven that they were “capable of appreciating the
nature and criminality of the act, that is, that (they) acted with discernment,”
The preceding discussion shows that “intelligence” as an element of dolo
actually embraces the concept of discernment as used in Article 12 of the
RPC and as defined in the aforecited case of People vs. Doquenca, supra, It
could not therefore be argued that discernment is equivalent or connotes
“intent” for they refer to two different concepts. Intelligence, which includes
descernment, is a distinct element of dolo as a means of committing an
offense.
Same; Same; Same; Same; Same; Indispensable elements of felonies

committed by means of culpa; Intent is wanting is such felonies but
intelligence remains an essential element.—In evaluating felonies committed
by means of culpa, three (3) elements are indispensable, namely,
intelligence, freedom of action, and negligence, Obviously, intent is wanting
in such felonies. However, intelligence remains as an essential element,
hence, it is necessary that a minor above nine but below fifteen years of age
be possessed with intelligence in committing a negligent act which results in
a quasi-offense. For him to be criminally liable, he must discern the
rightness or wrongness of the effects of his negligent act. Indeed, a minor
over nine years of age but below fifteen may be held liable for a
quasioffense under Article 365 of the RPC. A reading of the said Article
would reveal such fact as it starts off with the phrase “Any person
478
478
. . ." without any distinction or exception made. Ubi lex non distinquit nec
nos distinguere debemos.
Same; Same; P.D. 1508; Jurisdiction; Jurisdiction of a court over a criminal

case is determined by the penalty imposable under the law for the offense
and not the penalty ultimately imposed.—The jurisdiction of a court over a
criminal case is determined by the penalty imposable under the law for the
offense and not the penalty ultimately imposed (People vs. Caldito, 72 Phil.
263; People vs. Purisima, 69 SCRA 341; Dioquino vs. Cruz and People vs.
Savellano, 116 SCRA 451). The same principle applies in construing
Section 2(3) of P.D. 1508.
Same; Same; Same; Same; Sec. 2(3) of PD 1508 construed to mean that the
penalty which the law defining the offense attaches to the latter should be
considered, and any circumstance which affects criminal liability must not
be considered.—We therefore rule that, in construing Section 2(3) of P.D.
1508, the penalty which the law defining the offense attaches to the latter
should be considered. Hence, any circumstance which may affect criminal
liability must not be considered.
Same; Same; Same; Same; P.D. 1508 is not jurisdictional.—The petitioner,
in his arguments, asserts that since P.D. 1508 has not been complied with,
the trial court has no jurisdiction over the case. This erroneous perception
has been corrected long before. As intimated in the case of Royales vs. IAC,
127 SCRA 470, and categorically stated in Ebol vs. Amin, 135 SCRA 438,
P.D. 1508 is not jurisdictional.
SPECIAL CIVIL ACTION for certiorari to review the order of the City
Court of Legaspi, Br. I Almodovar, J.
The facts are stated in the opinion of the Court.
Teresita Dy-Liacco and Roberto Madrid for petitioner.
PARAS, J.:
Presented before Us is a special civil action for certiorari against the

Honorable Judge Ignacio Almodovar of the City Court of Legaspi, Branch I,
Legaspi City, raising beautiful questions of law which We are tasked to
resolve. Considering the issues and arguments raised by petitioner, We
impleaded the People of the Philippines as party respondents herein in a
479
VOL. 169, JANUARY 26, 1989
479
resolution dated 17 September 1986 (p. 41, Rollo).
The relevant facts gathered from the records are as follows:
Petitioner John Philip Guevarra, then 11 years old, was playing with his best
friend Teodoro Almine, Jr. and three other children in their backyard in the
morning of 29 October 1984. They were target-shooting a bottle cap (tansan)
placed around fifteen (15) to twenty (20) meters away with an air rifle
borrowed from a neighbor. In the course of their game, Teodoro was hit by a
pellet on his left collar bone which caused his unfortunate death.
After conducting a preliminary investigation, the examining Fiscal
exculpated petitioner due to his age and because the unfortunate occurrence
appeared to be an accident. The victim’s parents appealed to the Ministry of
Justice, which ordered the Fiscal to file a case against petitioner for
Homicide through reckless Imprudence. The information dated 9 October
1985 was consequently filed, which narrated in part:
"... the above-named accused, who is over 9 years but below 15 years of age
and acting with discernment, did then and there, without taking the
necessary precautions to prevent and/or avoid accident or injuries to persons,
willfully, unlawfully and feloniously operate and cause to be fired, in a
reckless and imprudent manner, an air rifle with .22 caliber bore with rifling,
oxygen and bolt operated thereby hitting as a result of said carelessness and
imprudence one TEODORICO PABLO ALMINE at the left side of the body
with its pellet, causing injuries Which directly caused his untimely death; . .
." (p. 8, Rollo)
On 25 October 1985, petitioner moved to quash the said information on the

following grounds:
THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE.
II
THAT THE INFORMATION CONTAINS AVERMENTS WHICH IF

TRUE WOULD CONSTITUTE A LEGAL EXCUSE OR
JUSTIFICATION.
480
480
III
THAT THIS HONORABLE COURT HAS NO JURISDICTION OVER
THE OFFENSE CHARGED AND THE PERSON OF THE DEFENDANT.
(p. 9, Rollo)
This motion, in an Order dated 4 April 1986, was denied with respect to the
first and third grounds relied upon. However, the resolution of the second
ground was deferred until evidence shall have been presented during trial.
On 26 July 1986, this present petition for certiorari was filed, raising two (2)
issues, to wit:
WHETHER AN ELEVEN (11) YEAR OLD BOY COULD BE CHARGED

WITH THE CRIME OF HOMICIDE THRU RECKLESS IMPRUDENGE,
AND
II
WHETHER THE COURT HAD JURISDICTION OVER THE CASE

NOTWITHSTANDING THE FACT THAT IT DID NOT PASS THRU
THE BARANGAY LUPON. (Petition, p. 3, Rollo)
Going through the written arguments of the parties, the surfacing of a

corollary controversy with respect to the first issue raised is evident, that is,
whether the term “discernment”, as used in Article 12(3) of the Revised
Penal Code (RPC) is synonymous with “intent.” It is the position of the
petitioner that “discernment” connotes “intent” (p. 96, Rollo), invoking the
unreported case of People vs. Nieto, G.R. No. 11965, 30 April 1958. In that
case We held that the allegation of “with intent to kill. . ." amply meets the
requirement that discernment should be alleged when the accused is a minor
between 9 and 15 years old. Petitioner completes his syllogism in saying
that:
“If discernment is the equivalent of ‘with intent’, then the allegation in the
information that the accused acted with discernment and willfully
unlawfully, and feloniously, operate or cause to be fired in a reckless and
imprudent manner an air rifle .22 caliber’ is an inherent contradiction
tantamount to failure of the information to allege a cause of action or
constitute a legal excuse or exception.” (Memo
481
VOL. 169, JANUARY 26, 1989
481
randum for Petitioner, p. 97, Rollo)
If petitioner’s argument is correct, then no minor between the ages of 9 and

15 may be convicted of a quasi-offense under Article 265 of the RPC.
On the contrary, the Solicitor General insists that discernment and intent are
two different concepts. We agree with the Solicitor General’s view; the two
terms should not be confused.
The word “intent” has been defined as
"(a) design; a determination to do a certain things; an aim; the purpose of the

mind, including such knowledge as is essential to such intent;. . .; the design
resolve, or determination with which a person acts.” (46 CJS Intent p. 1103.)
It is this intent which comprises the third element of dolo as a means of

committing a felony, freedom and intelligence being the other two. On the
other hand, We have defined the term “discernment,” as used in Article
12(3) of the RPC, in the old case of People vs. Doquena, 68 Phil. 580(1939),
in this wise:
“The discernment that constitutes an exception to the exemption from

criminal liability of a minor under fifteen years of age but over nine, who
commits an act prohibited by law, is his mental capacity to understand the
difference between right and wrong . . ." (italics Ours) p. 583
From the foregoing, it is clear that the terms “intent” and “discernment”
convey two distinct thoughts. While both are products of the mental
processes within a person, the former refers to the desired of one’s act while
the latter relates to the moral significance that person ascribes to the said act.
Hence a person may not intend to shoot another but may be aware of the
consequences of his negligent act which may cause injury to the same
person in negligently handling an air rifle. It is not connect, therefore, to
argue, as petitioner does, that since a minor above nine years of age but
below fifteen acted with discernment, then he intended such act to be done.
He may negligently shoot his friend, thus did not intend to shoot him, and at
the same time recognize the undesirable result of his negligence.
482
482
In further outlining the distinction between the words “intent” and

“discernment,” it is worthy to note the basic reason behind the enactment of
the exempting circumstances embodied in Article 12 of the RPC; the
complete absence of intelligence, freedom of action, or intent, or on the
absence of negligence on the part of the accused.1 In expounding on
intelligence as the second element of dolus, Albert2 has stated:
“The second element of dolus is intelligence; without this power, necessary

to determine the morality of human acts to distinguish a licit from an illicit
act, no crime can exist, and because . . . the infant3 (has) no intelligence, the
law exempts (him) from criminal liability.” (Italics Ours)
It is for this reason, therefore, why minors nine years of age and below are
not capable of performing a criminal act. On the other hand, minors above
nine years of age but below fifteen are not absolutely exempt. However, they
are presumed to be without criminal capacity, but which presumption may
be rebutted if it could be proven that they were “capable of appreciating the
nature and criminality of the act, that is, that (they) acted with
discernment."4 The preceding discussion shows that “intelligence” as an
element of dolo actually embraces the concept of discernment as used in
Article 12 of the RPC and as defined in the aforecited case of People vs.
Doquena, supra. It could not therefore be argued that discernment is
equivalent or connotes “intent” for they refer to two different concepts.
Intelligence, which includes discernment, is a distinct element of dolo as a
means of committing an offense.
In evaluating felonies committed by means of culpa, three (3) elements are

indispensable, namely, intelligence, freedom of action, and negligence.
Obviously, intent is wanting in such felonies. However, intelligence remains
as an essential element, hence, it is necessary that a minor above nine but
below
_________________
1 Reyes, The Revised Penal Code, Book I, 12th Ed., 1981, p. 213.
2 Albert, the Revised Penal Code, Manila: University Publishing Co., Inc.,
1946, p. 22.
3 Ibid., referring to article 12, Number 2. See footnote, p. 22.
4 Ibid., p. 82.
483
VOL. 169, JANUARY 26, 1989
483
fifteen years of age be possessed with intelligence in committing a negligent

act which results in a quasi-offense. For him to be criminally liable, he must
discern the rightness or wrongness of the effects of his negligent act. Indeed,
a minor over nine years of age but below fifteen may be held liable for a
quasi-offense under Article 365 of the RPC. A reading of the said Article
would reveal such fact as it starts off with the phrase “Any person . . ."
without any distinction or exception made. Ubi lex non distinquit nec nos
distinguere debemos.
In his last attempt to justify his position equating the words “intent” and
“discernment” used under the law, he cites the case of People vs. Nieto,
supra. However, petitioner failed to present the qualifying sentence
preceding the ruling he now invokes, which reads.
“That requirement should be deemed amply met with the allegation in the
information that she . . . ‘with the intent to kill, did then and there wilfully,
criminally and feloniously push one Lolita Padilla ..." into a deep place of
the Penaranda River and as a consequence thereof Lolita Padilla got
drowned and died right then and there.’ This allegation clearly conveys the
idea that she knew what would be the consequence of her unlawful act of
pushing her victim into deep water and that she knew it to be wrong. (Italics
Ours)
From the above, it is clear that We did not mean to equate the words “intent”
and “discernment.” What We meant was that the combined effect of the
words used in the information is to express a knowledge, on the part of the
accused Nieto, of the wrongness or rightness of her act. Hence, petitioner
may not validly contend that since the information now in question alleged
“discernment,” it in effect alleged “intent.” The former may never embrace
the idea of the latter; the former expresses the thought of passivity while the
latter signifies activity.
Coming now to the second issue of jurisdiction, it is contended by the

petitioner that the case against him should have first been brought before the
Lupong Tagapayapa pursuant to Presidential Decree No. 1508, Section 2(3).
He submits that, considering his entitlement to a two-degree privileged
mitigating circumstance due to his minority, P.D. 1508 applies to his case
because the penalty imposable is reduced to not higher than arresto menor
from an original arresto mayor maximum
484
484
to prision correccional medium as prescribed in Article 365 of the RPC. This

is not correct. The jurisdiction of a court over a criminal case is determined
by the penalty imposable under the law for the offense and not the penalty
ultimately imposed (People vs. Caldito, 72 Phil. 263; People vs. Purisima,
69 SCRA 314; Dioquino vs. Cruz and People vs. Savellano, 116 SCRA
451), The same principle applies in construing Section 2(3) of P.D. 1508,
which states:
“x x x
(3) Offense punishable by imprisonment exceeding 30 days, or a fine

exceeding P200.00; x x x " (italics supplied)
Expounding on the above provision, a member of the committee that drafted

P.D. 1508 has said:
“The law says ‘punishable/ not ‘punished.’ One should therefore consider
the penalty provided for by law or ordinance as distinguished from the
penalty actually imposed in particular cases after considering the attendant
circumstances affecting criminal liability."5
The foregoing finds support in our jurisprudence as above cited. We

therefore rule that, in construing Section 2(3) of P.D. 1508, the penalty
which the law defining the offense attaches to the latter should be
considered, Hence, any circumstance which may affect criminal liability
must not be considered.
The petitioner, in his arguments, asserts that since P.D. 1508 has not been
complied with, the trial court has no jurisdiction over the case, This
erroneous perception has been corrected long before. As intimated in the
case of Royales vs. IAC, 127 SCRA 470, and categorically stated in Ebol vs.
Amin, 135 SCRA 438, P.D. 1508 is not jurisdictional.
WHEREFORE, PREMISES CONSIDERED, this petition is hereby

DISMISSED for lack of merit and the Temporary Restraining Order
effective 17 September 1986 is LIFTED. Let
_____________
5 Pe, Cecillio and Tadiar, Alfredo, “Katarungang Pambarangay: Dynamics

of Compulsory Conciliation.” Manila’: UST Press, 1979 p. 65–66.
485
VOL. 169, JANUARY 26, 1989
485
Piano vs. Court of Appeals
this case be REMANDED to the lower court for trial on the merits. No cost.
SO ORDERED.
Melencio-Herrera, (Chairman), Padilla, Sarmiento and Regalado, JJ.,

concur.
Petition dismissed. Case remanded to trial court for trial on the merits.
Notes.—Where the manner of obtaining jurisdiction is mandatory it must be

strictly complied with. (Director of Lands vs. Court of Appeals, 102 SCRA
370.)
Jurisdiction of a court is determined by extent of the penalty to be imposed.

(People vs. Buissan, 105 SCRA 547).
——o0o——
© Copyright 2018 Central Book Supply, Inc. All rights reserved. Guevarra
vs. Almodovar, 169 SCRA 476, G.R. No. 75256 January 26, 1989

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476

SUPREME COURT REPORTS ANNOTATED