Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the
accused himself, because from the very nature of these facts and from the circumstances
surrounding the incident upon which these proceedings rest, no other evidence as to these facts was
available either to the prosecution or to the defense. We think, however, that, giving the accused the
benefit of the doubt as to the weight of the evidence touching those details of the incident as to
which there can be said to be any doubt, the following statement of the material facts disclose by the
record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley,
Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy
or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the
nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one
slept in the house except the two servants, who jointly occupied a small room toward the rear of the
building, the door of which opened upon a narrow porch running along the side of the building, by
which communication was had with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch
on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room there was but one small window, which,
like the door, opened on the porch. Aside from the door and window, there were no other openings
of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night,
was suddenly awakened by some trying to force open the door of the room. He sat up in bed and
called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door
that it was being pushed open by someone bent upon forcing his way into the room. Due to the
heavy growth of vines along the front of the porch, the room was very dark, and the defendant,
fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just above the knee by the edge of the chair
which had been placed against the door. In the darkness and confusion the defendant thought that
the blow had been inflicted by the person who had forced the door open, whom he supposed to be a
burglar, though in the light of after events, it is probable that the chair was merely thrown back into
the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife
which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards
turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps
in a desperately wounded condition, followed by the defendant, who immediately recognized him in
the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next
house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just
described, one of which took place in a house in which the defendant was employed as cook; and as
defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his
personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and
amicable terms prior to the fatal incident, had an understanding that when either returned at night,
he should knock at the door and acquiant his companion with his identity. Pascual had left the house
early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez,
servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three
returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No.
28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and
Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back
steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it
under the impression that Pascual was "a ladron" because he forced open the door of their sleeping
room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless
it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to
frightened him by forcing his way into the room, refusing to give his name or say who he was, in
order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital,
where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court
of simple homicide, with extenuating circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto,
but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his
lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

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

(1) Illegal aggression.

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

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to
complete exception from criminal liability for the death of the victim of his fatal blow, if the intruder
who forced open the door of his room had been in fact a dangerous thief or "ladron," as the
defendant believed him to be. No one, under such circumstances, would doubt the right of the
defendant to resist and repel such an intrusion, and the thief having forced open the door
notwithstanding defendant's thrice-repeated warning to desist, and his threat that he would kill the
intruder if he persisted in his attempt, it will not be questioned that in the darkness of the night, in a
small room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend himself from
such an assault, and in striking promptly, without waiting for the thief to discover his whereabouts
and deliver the first blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the
defendant nor his property nor any of the property under his charge was in real danger at the time
when he struck the fatal blow. That there was no such "unlawful aggression" on the part of a thief or
"ladron" as defendant believed he was repelling and resisting, and that there was no real "necessity"
for the use of the knife to defend his person or his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally
responsible who, by reason of a mistake as to the facts, does an act for which he would be exempt
from criminal liability if the facts were as he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known the true state of the facts at the time when
he committed the act. To this question we think there can be but one answer, and we hold that under
such circumstances there is no criminal liability, provided always that the alleged ignorance or
mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged
(e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the presumption of
intent," and works an acquittal; except in those cases where the circumstances demand a conviction
under the penal provisions touching criminal negligence; and in cases where, under the provisions of
article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability
for any wrongful act committed by him, even though it be different from that which he intended to
commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and cases
cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32
N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of
consideration is whether malice or criminal intent is an essential element or ingredient of the crimes
of homicide and assassination as defined and penalized in the Penal Code. It has been said that
since the definitions there given of these as well as most other crimes and offense therein defined,
do not specifically and expressly declare that the acts constituting the crime or offense must be
committed with malice or with criminal intent in order that the actor may be held criminally liable, the
commission of the acts set out in the various definitions subjects the actor to the penalties described
therein, unless it appears that he is exempted from liability under one or other of the express
provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and offenses as
set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent
is an essential ingredient of the crime, nevertheless, the general provisions of article 1 of the code
clearly indicate that malice, or criminal intent in some form, is an essential requisite of all crimes and
offense therein defined, in the absence of express provisions modifying the general rule, such as are
those touching liability resulting from acts negligently or imprudently committed, and acts done by
one voluntarily committing a crime or misdemeanor, where the act committed is different from that
which he intended to commit. And it is to be observed that even these exceptions are more apparent
than real, for "There is little distinction, except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore carelessness is criminal, and within limits supplies
the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a disposition to do harm
that one of them may very well be looked upon as the measure of the other. Since, therefore, the
guilt of a crime consists in the disposition to do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the harm which is done by the crime, the
consequence is that the guilt of the crime follows the same proportion; it is greater or less according
as the crime in its own nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a corrupt mid, is to be viewed the same
whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the
contrary shall appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even
though the wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in
this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that
without intention (intention to do wrong or criminal intention) there can be no crime; and that the
word "voluntary" implies and includes the words "con malicia," which were expressly set out in the
definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as
Pacheco insists, their use in the former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt
from criminal responsibility when the act which was actually intended to be done was in itself a lawful
one, and in the absence of negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without intention there can be
no crime. (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon by
Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no
intention there is no crime . . . in order to affirm, without fear of mistake, that under our code
there can be no crime if there is no act, an act which must fall within the sphere of ethics if
there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its
sentence of May 31, 1882, in which it made use of the following language:
 It is necessary that this act, in order to constitute a crime, involve all the malice which is
supposed from the operation of the will and an intent to cause the injury which may be the
object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be
the civil effects of the inscription of his three sons, made by the appellant in the civil registry and in
the parochial church, there can be no crime because of the lack of the necessary element or criminal
intention, which characterizes every action or ommission punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:

. . . Considering that the moral element of the crime, that is, intent or malice or their absence
in the commission of an act defined and punished by law as criminal, is not a necessary
question of fact submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the
various crimes and misdemeanors therein defined becomes clear also from an examination of the
provisions of article 568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would
constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum
degree, to prision correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or
negligence shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion,
without being subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is
equal to or less than those contained in the first paragraph thereof, in which case the courts
shall apply the next one thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent,"
and the direct inference from its provisions is that the commission of the acts contemplated therein,
in the absence of malice (criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning
the word "willful" as used in English and American statute to designate a form of criminal intent. It
has been said that while the word "willful" sometimes means little more than intentionally or
designedly, yet it is more frequently understood to extent a little further and approximate the idea of
the milder kind of legal malice; that is, it signifies an evil intent without justifiable excuse. In one case
it was said to mean, as employed in a statute in contemplation, "wantonly" or "causelessly;" in
another, "without reasonable grounds to believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose; in other words,
corruptly." In English and the American statutes defining crimes "malice," "malicious," "maliciously,"
and "malice aforethought" are words indicating intent, more purely technical than "willful" or willfully,"
but "the difference between them is not great;" the word "malice" not often being understood to
require general malevolence toward a particular individual, and signifying rather the intent from our
legal justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in the definition of a
crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of
the various modes generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr. Bishop, who supports his position with
numerous citations from the decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the
intent. In controversies between private parties the quo animo with which a thing was done is
sometimes important, not always; but crime proceeds only from a criminal mind. So that —

There can be no crime, large or small, without an evil mind. In other words, punishment is
the sentence of wickedness, without which it can not be. And neither in philosophical
speculation nor in religious or mortal sentiment would any people in any age allow that a
man should be deemed guilty unless his mind was so. It is therefore a principle of our legal
system, as probably it is of every other, that the essence of an offense is the wrongful intent,
without which it can not exists. We find this doctrine confirmed by —

Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct on this
subject. It consequently has supplied to us such maxims as Actus non facit reum nisi mens
sit rea, "the act itself does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my act;" and others of
the like sort. In this, as just said, criminal jurisprudence differs from civil. So also —

Moral science and moral sentiment teach the same thing. "By reference to the intention, we
inculpate or exculpate others or ourselves without any respect to the happiness or misery
actually produced. Let the result of an action be what it may, we hold a man guilty simply on
the ground of intention; or, on the dame ground, we hold him innocent." The calm judgment
of mankind keeps this doctrine among its jewels. In times of excitement, when vengeance
takes the place of justice, every guard around the innocent is cast down. But with the return
of reason comes the public voice that where the mind is pure, he who differs in act from his
neighbors does not offend. And —

In the spontaneous judgment which springs from the nature given by God to man, no one
deems another to deserve punishment for what he did from an upright mind, destitute of
every form of evil. And whenever a person is made to suffer a punishment which the
community deems not his due, so far from its placing an evil mark upon him, it elevates him
to the seat of the martyr. Even infancy itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the utmost confidence that the plea, if
its truth is credited, will be accepted as good. Now these facts are only the voice of nature
uttering one of her immutable truths. It is, then, the doctrine of the law, superior to all other
doctrines, because first in nature from which the law itself proceeds, that no man is to be
punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs.
286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of
abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non
excusat ("Ignorance of the law excuses no man"), without which justice could not be administered in
our tribunals; and compelled also by the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make
their commission criminal without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the courts have always held that unless
the intention of the lawmaker to make the commission of certain acts criminal without regard to the
intent of the doer is clear and beyond question the statute will not be so construed (cases cited in
Cyc., vol. 12, p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has
been said not to be a real departure from the law's fundamental principle that crime exists only
where the mind is at fault, because "the evil purpose need not be to break the law, and if suffices if it
is simply to do the thing which the law in fact forbids." (Bishop's New Criminal Law, sec. 300, and
cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring
mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice.
On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is,
in all cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as
shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the
actor from criminal liability provided always there is no fault or negligence on his part; and as laid
down by Baron Parke, "The guilt of the accused must depend on the circumstances as they appear
to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb.,
342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41;
P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to
whether he honestly, in good faith, and without fault or negligence fell into the mistake is to be
determined by the circumstances as they appeared to him at the time when the mistake was made,
and the effect which the surrounding circumstances might reasonably be expected to have on his
mind, in forming the intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the
existence of facts which will justify a killing — or, in terms more nicely in accord with the
principles on which the rule is founded, if without fault or carelessness he does believe them
— he is legally guiltless of the homicide; though he mistook the facts, and so the life of an
innocent person is unfortunately extinguished. In other words, and with reference to the right
of self-defense and the not quite harmonious authorities, it is the doctrine of reason and
sufficiently sustained in adjudication, that notwithstanding some decisions apparently
adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is misled concerning them, and
defends himself correctly according to what he thus supposes the facts to be the law will not
punish him though they are in truth otherwise, and he was really no occassion for the
extreme measures. (Bishop's New Criminal Law, sec. 305, and large array of cases there
cited.)

The common illustration in the American and English textbooks of the application of this rule is the
case where a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his
friends in a spirit of mischief, and with leveled pistol demands his money or his life, but is killed by
his friend under the mistaken belief that the attack is a real one, that the pistol leveled at his head is
loaded, and that his life and property are in imminent danger at the hands of the aggressor. No one
will doubt that if the facts were such as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability, although if he knew the real state
of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of
homicide or assassination. Under such circumstances, proof of his innocent mistake of the facts
overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes
at the same time the presumption established in article 1 of the code, that the "act punished by law"
was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious
design against him, and under that supposition killed him, although it should afterwards
appear that there was no such design, it will not be murder, but it will be either manslaughter
or excusable homicide, according to the degree of caution used and the probable grounds of
such belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's
report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same attitude, A, who has a club in his
hand, strikes B over the head before or at the instant the pistol is discharged; and of the
wound B dies. It turns out the pistol was loaded with powder only, and that the real design of
B was only to terrify A. Will any reasonable man say that A is more criminal that he would
have been if there had been a bullet in the pistol? Those who hold such doctrine must
require that a man so attacked must, before he strikes the assailant, stop and ascertain how
the pistol is loaded — a doctrine which would entirely take away the essential right of self-
defense. And when it is considered that the jury who try the cause, and not the party killing,
are to judge of the reasonable grounds of his apprehension, no danger can be supposed to
flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of
which are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in
company only of his wife, without other light than reflected from the fire, and that the man
with his back to the door was attending to the fire, there suddenly entered a person whom he
did not see or know, who struck him one or two blows, producing a contusion on the
shoulder, because of which he turned, seized the person and took from his the stick with
which he had undoubtedly been struck, and gave the unknown person a blow, knocking him
to the floor, and afterwards striking him another blow on the head, leaving the unknown lying
on the floor, and left the house. It turned out the unknown person was his father-in-law, to
whom he rendered assistance as soon as he learned his identity, and who died in about six
days in consequence of cerebral congestion resulting from the blow. The accused, who
confessed the facts, had always sustained pleasant relations with his father-in-law, whom he
visited during his sickness, demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted in self-defense, with all the
circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of
the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity for the employment of the force
used, and in accordance with articles 419 and 87 of the Penal Code condemned him to
twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have been proven, that the accused
was surprised from behind, at night, in his house beside his wife who was nursing her child,
was attacked, struck, and beaten, without being able to distinguish with which they might
have executed their criminal intent, because of the there was no other than fire light in the
room, and considering that in such a situation and when the acts executed demonstrated
that they might endanger his existence, and possibly that of his wife and child, more
 especially because his assailant was unknown, he should have defended himself, and in
doing so with the same stick with which he was attacked, he did not exceed the limits of self-
defense, nor did he use means which were not rationally necessary, particularly because the
instrument with which he killed was the one which he took from his assailant, and was
capable of producing death, and in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not given him to known or distinguish
whether there was one or more assailants, nor the arms which they might bear, not that
which they might accomplish, and considering that the lower court did not find from the
accepted facts that there existed rational necessity for the means employed, and that it did
not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme
court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired
part of the city, upon arriving at a point where there was no light, heard the voice of a man, at
a distance of some 8 paces, saying: "Face down, hand over you money!" because of which,
and almost at the same money, he fired two shots from his pistol, distinguishing immediately
the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they
have killed me," and hastening to his assistance, finding the body lying upon the ground, he
cried, "Miguel, Miguel, speak, for God's sake, or I am ruined," realizing that he had been the
victim of a joke, and not receiving a reply, and observing that his friend was a corpse, he
retired from the place. Shall he be declared exempt in toto from responsibility as the author
of this homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not
so find, but only found in favor of the accused two of the requisites of said article, but not that
of the reasonableness of the means employed to repel the attack, and, therefore,
condemned the accused to eight years and one day of prison mayor, etc. The supreme court
acquitted the accused on his appeal from this sentence, holding that the accused was acting
under a justifiable and excusable mistake of fact as to the identity of the person calling to
him, and that under the circumstances, the darkness and remoteness, etc., the means
employed were rational and the shooting justifiable. (Sentence supreme court, March 17,
1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a
large stone thrown against his window — at this, he puts his head out of the window and
inquires what is wanted, and is answered "the delivery of all of his money, otherwise his
house would be burned" — because of which, and observing in an alley adjacent to the mill
four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the
men, who, on the next morning was found dead on the same spot. Shall this man be
declared exempt from criminal responsibility as having acted in just self-defense with all of
the requisites of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but not that of reasonable necessity for
the means, employed, and condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the supreme court acquitted the
condemned, finding that the accused, in firing at the malefactors, who attack his mill at night
in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant
Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril,
both of his life and of his property and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the defendant at the time, he acted in
good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising
his legitimate right of self-defense; that had the facts been as he believed them to be he would have
been wholly exempt from criminal liability on account of his act; and that he can not be said to have
been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the
facts, or in the means adopted by him to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the
defendant acquitted of the crime with which he is charged and his bail bond exonerated, with the
costs of both instance de oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the
merits of the case, the crime of homicide by reckless negligence, defined and punishes in article 568
of the Penal Code, was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and
while the act was done without malice or criminal intent it was, however, executed with real
negligence, for the acts committed by the deceased could not warrant the aggression by the
defendant under the erroneous belief on the part of the accused that the person who assaulted him
was a malefactor; the defendant therefore incurred responsibility in attacking with a knife the person
who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused
should be sentenced to the penalty of one year and one month of prision correctional, to suffer the
accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs of the
deceased, with the costs of both instances, thereby reversing the judgment appealed from.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 79089 May 18, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO BONDOY, accused-appellant.

The Solicitor General for plaintiff-appellee.

Pablo S. Bernardo for accused-appellant.

ROMERO, J.:

Failing to convince a thirty-one-year old storeowner and mother of two to drop the robbery case she
had filed against him, Rogelio Bondoy, after forcibly entering her store and nicking her abdomen with
a sharp knife, raped her within hearing distance of her children. For such offense, Bondoy was
arrested by the police on September 17, 19861 and on that same day, the offended party, Patria V.
Sabularce, with the marital consent of her husband, filed a complaint for "rape with physical injuries"
before the Municipal Trial Court of Tabaco, Albay.2

On October 24, 1986, an information for rape with the use of deadly weapon was filed against him
before the Regional Trial Court of Albay, Branch 17 at Tabaco. The information reads:

The undersigned Assistant Provincial Fiscal of Albay hereby accuses ROGELIO

BONDOY of Sagurong, San Miguel Island, Tabaco, Albay of the crime of RAPE
WITH THE USE OF DEADLY WEAPON under ARTICLE 335 OF THE REVISED
PENAL CODE, committed as follows:

That on or about the 15th day of September, 1986 at more or less

2:00 o'clock in the morning, at Barangay Sagurong, San Miguel
Island, Municipality of Tabaco, Province of Albay, Philippines and
with the jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and feloniously
destroy the wall of the store in the house of PATRIA V. SABULARCE,
through which accused entered, and once inside, with the use of a
knife or deadly weapon and by means of force and intimidation and
with intent to have carnal knowledge, committed the crime of
consummated rape against Patria V. Sabularce, a married woman,
wounding and inflicting physical injuries to her, grabbing and teasing
her duster and undressing her, kissing her, mashing her breasts and
by lying and having sexual intercourse with her, all against her will
and consent.

That the following aggravating circumstances attended the commission of the crime,
to wit:

1. That it was committed in the dwelling of the offended party without

the latter giving any provocation;

2. That the crime was committed in the nighttime which facilitated its
commission;

3. That the crime was committed after unlawful entry; and

 4. That as a means to the commission of a crime a wall was broken.

ACTS CONTRARY TO LAW.3

On arraignment, Bondoy pleaded not guilty. Thereafter, the prosecution presented evidence proving
the following:

Patria V. Sabularce, married to Domingo Sabularce, lived in a one-bedroom house with a store in
Sagurong, San Miguel, Tabaco, Albay. A native of Lubang, Mindoro, she and her husband arrived in
Sagurong in December 1983 to put up a business as the factory where they were employed allowed
them only three working days. Patria first met Bondoy through the sister of her husband, Milagros
Boral, who recommended him to Patria as a baggage
carrier.4

On August 12, 1986, Patria's house was burglarized by Bondoy. Desiderio Boral, the husband of
Milagros, whipped Bondoy three times on the chest with an iron bar.5 Having taken cash worth
P800.00, twenty-two bottles of beer and several bottles of gin as well as bars of health soap after
attacking Patria with a kitchen knife and inflicting upon her physical injuries, Bondoy was charged
with the crime of robbery with physical injuries by the Tabaco police before the Municipal Trial
Court.6

In the evening of September 14, 1986 or a month after the robbery, Patria slept in the room besides
the kitchen with her seven and nine-year old children and nephew, Rommel Boral, the thirteen-year-
old son of Milagros. At around 2:00 o'clock the following morning, Patria was roused from her sleep
by the crushing noise of a wall being broken down. After hearing the sound of a crashing bottles, she
took her flashlight and made her way towards the kitchen. Bondoy who was at the doorway
immediately grabbed Patria's right hand and poked a sharp instrument at her. Bondoy told her not to
shout or else she would be killed. He then pulled her down the earthen floor of the kitchen and took
her flashlight even as she cried. He said that he could do what he wanted to do with her because her
defender, Desiderio Boral, was not around. When he asked her to withdraw the case she had filed
against him, Patria told him that she could not very well do it; wherewith, Bondoy ordered her to take
off her clothes. When she refused, a struggle ensued and she fell to the ground in a supine position.
He then attempted to rape her but Patria fought back enabling her to sit up. Bondoy, however,
forcibly undressed her and tried to pull down her panty.

As Patria continued resisting, Bondoy repeatedly asked her to withdraw the case she had filed
against him; otherwise, she and the children would all die. Upon her refusal to acquiesce to his
demand, Bondoy ordered her to lie down. When she refused, Bondoy slashed her abdomen twice.
Even as she fought back, Bondoy poked his knife at her. With his left hand, Bondoy pinned both her
hands to the ground, lay on top of her, and pulled down her panty. Although she tried to wiggle away
from him, he succeeded in consummating his bestial desire. Since Patria was shouting, he covered
her mouth, then focused the flashlight all over her body looking for her moles. Although Bondoy
placed a knife near Patria's left hand, it was beyond her grasp.

After raping her, Bondoy stood up and held her by the neck. In her haste, she wore her underwear
wrong side out. As she was still crying, Bondoy asked for the key to the kitchen door and unlocked
the same.

As she sat exhausted on the kitchen floor, she heard her child call out, "Mama." Bondoy ordered her
to go upstairs while pointing the knife menacingly at her. Once inside the room, Bondoy held the
hands of her two children, kicked Rommel and told him not to shout; otherwise he would kill them all.
As he ordered them to go to the store, Bondoy told Patria that they would go to town to withdraw the
case against him. Patria told him that she could not very well go with him without her clothes on.
Bondoy then flicked the knife at her abdomen. Upon seeing this, Rommel pleaded with Bondoy,
"Manoy Rogel, do not do that to Tiya. It's a pity." Bondoy hit Rommel and as the latter reeled, his
forehead hit the wall.

Patria pleaded with Bondoy to spare the children. Promising that she would go with him, she asked
for the sharp instrument he was holding. As she approached him, she held his hand that was holding
the sharp instrument. Having succeeded in taking the knife, Patria stabbed Bondoy near the armpit.
Struggling for the possession of the weapon and having retaken it, Bondoy stabbed her right
forearm, whereupon she managed to shout for help. Somebody responded, "What's that, Patty?"
Bondoy then dashed out of the house through the kitchen leaving his t-shirt behind. Patria was left
crying on the ground until, espying her duster, she put it on.7

According to Milagros Boral, at around 2:00 o'clock in the morning of September 15, 1986, she was
awakened by the call of nature. Rising, she went to their kitchen, opened its door and went out. Then
she heard someone weeping from the store of Patria which was more or less two and a half meters
from her own kitchen door. She was surprised to see that the wall of Patria's store has been
destroyed.8 Overcoming her fear, she went to Patria's house, peeped through the pantry and saw
Bondoy poking a sharp instrument at the latter and telling her not to make a noise; otherwise he
would kill all of them. Bondoy also said in Tagalog, "Wala ang tagapagtanggol mo rito na si Derio."
She recognized Bondoy because of the lighted lamp in Patria's house.9

As her husband was out at sea then, Milagros sought the help of Manuel Bermal whose house was
just beside her own. Manuel replied that due to his old age, he was in no position to help, but told
her to go instead to Alfredo Boqueo, the husband of her eldest sister. When he peeped through the
bamboo slats of Patria's house, he also saw Bondoy pointing a knife at Patria and heard him
ordering her to withdraw the file she had filed against Bondoy. Both Bondoy and Patria were in their
underwear. Manuel also heard Bondoy order Patria to lie down. When she asked why, he saw
Bondoy slash Patria's stomach twice even as his victim was already begging for mercy. Manuel then
left as he could no longer stomach what he was witnessing.10

Meanwhile, Milagros has fetched Alfredo Boqueo and both of them ran the 200-meter distance
downhill to Patria's house. When they learned from Manuel that Bondoy was still inside, the two men
told her to fetch Domingo, the husband of Patria, at the Hacienda.

Milagros went to a neighbor who owned a motorboat and lied to her that Patria's daughter was ailing
because the son of the motorboat owner was the compadre of Bondoy. She was still at the shore of
the Hacienda when she began calling for her brother Domingo and posthaste, they went back to
Sagurong. Learning from Manuel that Bondoy was still inside Patria's house, she held Alfredo and
Domingo by their pants, pleading with them not to enter the house of Patria as something untoward
might happen. But when they heard Patria shouting for help, the two men ran to give succor.

Gathering her wits about her, Milagros accompanied the two men who entered the house of Patria.
They found a semi-conscious Patria sitting in the store dressed in a torn duster and with a bleeding
arm. Milagros massaged Patria's chest and decided that they should bring Patria to Tabaco.11

Thirteen-year-old Rommel Boral testified that he was awakened by the kick delivered by Bondoy. He
saw Bondoy embracing his aunt with a knife poked at her. Bondoy then brought him and Patria's two
children to the store. Bondoy told Patria to come with him but Patria retorted that she could not do so
as she was naked, as in fact she was only wearing her panty. After Bondoy slashed Patria's
stomach, Rommel tried to restrain Bondoy from further harming Patria but Bondoy pushed him hard
such that he hit his forehead on a hard object.
Rommel heard Patria telling Bondoy to give her his knife before they left. Suddenly, he saw Patria
stab Bondoy and the two struggled for the possession of the knife. Having succeeded in grabbing
the weapon, Bondoy stabbed Patria on her right arm. It was at this moment that Patria shouted for
help and somebody from outside the house asked, "What happened, Patty?," Bondoy then left the
house through the kitchen.12

Patria was in a state of shock when she was brought by motorboat to the Tabaco police
headquarters. Milagros tried to talk to her but Patria kept on crying. From the police headquarters,
she was taken to the Ziga Memorial Hospital by her husband. There, Dr. Sonny Sta. Rosa
conducted a vaginal examination on Patria which revealed the presence of spermatoza in the
cervical opening of her vaginal pool and canal.13 Thereupon he issued a medical certificate showing
that Patria sustained an incised 1.5 cm. wound at the lateral aspect of her right forearm and multiple
abrasions.14 He later testified that Patria's incised wound could have been caused by a sharp
instrument and that the other abrasions indicated in the medical certificate, which could also have
been caused by a sharp instrument, were three in number and located in the area surrounding the
umbilicus or navel.15

Lilia Colar, the medical technologist at the Ziga Memorial Hospital, examined the specimen of
vaginal discharge taken from Patria and found that it was "positive for sperm cells."16 She declared,
however, that the sperm cells were non-motile or dead.17

The defense theory, on the other hand, is that Bondoy could not have had sexual intercourse with
Patria without her consent because they were lovers. To prove this, the defense presented Emelita
Bondoy, the defendant's wife.

Emelita testified that on the night of February 27, 1986, her husband asked her to watch his
motorboat. After her husband left, she slept but she was awakened by an aching tooth. She went to
Patria's store to buy medicine but when she was near the store, she heard someone crying. Peeping
through a hole, she saw Patria sitting on the lap of her husband with her head on his chest. Patria
was telling her husband to leave his family and go with her to Manila. Bondoy retorted that he would
go with Patria only if she gave him five thousand pesos (P5,000.00) which he would leave with his
family. Inasmuch as Patria said that she had only two thousand pesos (P2,000.00), Bondoy
proposed that they had better stay where they were as they could still be happy.

Emelita heard Patria say that she wanted vengeance on her husband (Domingo) who was having an
affair with Normilita, Patria's own sister. As she could no longer bear the conversation, Emelita went
home and cried all night. When Bondoy returned the following morning, she confronted him and he
admitted that he was indeed having a relationship with Patria. He consoled her, however, saying that
he still loved his family.

After that incident, Emelita noticed that Bondoy and Patria were always together. Thus, in March, the
two boarded a "sibid-sibid" and went to Hacienda. After her husband had been charged with robbery,
Bondoy's family transferred to Rawis and returned to Sagurong in September. However, she
admitted not knowing anything about the September 15, 1986 incident because she and her children
were in Rawis.

On cross-examination, Emelita testified that on September 14, her husband left for Sagurong and he
returned only at 9:00 o'clock in the morning of September 15. On further questioning, she said that
her husband was sleeping with her between 2:00 and 3:00 o'clock in the morning of September 15.
Inspite of her knowledge about the relationship between Patria and her husband, she kept silent
about it because she wanted to avoid a scandal.18 In fact, she did not tell even her own parents about
her husband's infidelity although she confided the same to Bondoy's own parents.
To buttress her testimony on the relationship between Patria and Bondoy, she produced in court a
ring which Patria allegedly gave her husband. The ring was given to her by her husband after the
rape case had been filed against him or just before she testified. She saw the ring on Patria's finger
even before the robbery case was filed against Bondoy. When asked by the fiscal to wear the ring, it
fitted Emelita's ring finger.19

Juan Bongalos, the brother-in-law of Bondoy, testified that around 9:00 o'clock in the evening of
September 14, he had supper with Bondoy whom he had invited. They talked about Bondoy's
intimate relationship with Patria. After supper, he accompanied Bondoy home because Patria's
relatives had been threatening Bondoy. Along the way, Patria called Bondoy and told him to go with
her to her house. Bondoy, who had his shirt slung on his shoulder, reached only the kitchen door of
Patria's house. Patria was forcing Bondoy to go inside her house but he declined the invitation.
While Bondoy was raising his left hand, Patria suddenly stabbed him on his left side. Bondoy ran
away and Juan followed him.20

Testifying on his own behalf, Bondoy corroborated Bongalos' story on how he was wounded by
Patria. He added that Patria stabbed him because he wanted to end their relationship. Bondoy
repeated Emelita's story about the February 27 incident between himself and Patria that she had
allegedly witnessed. He also testified that he operates a motor banca between Sagurong and
Tabaco to ferry cargo and passengers like Patria. He admitted having been employed by Patria as a
baggage carrier and that she had been paying him for his services until they had a "love relationship"
for one and a half years. During the relationship, he "used" her.21

Bondoy related that on one occasion, while riding together in a "sibid-sibid" towards Hacienda, he
and Patria kissed each other. Patria gave him a ring as a symbol of her love for him.22 He admitted
wearing the ring on his left little finger. However, when asked by the fiscal to try on the ring, the court
noticed that it did not fit him.23

On April 20, 1987, the lower court24 rendered a decision convicting Bondoy of the crime charged. Its
dispositive portion states:

WHEREFORE, premises considered, this Court finds accused Rogelio Bondoy of

Sagurong, San Miguel Island, Tabaco, Albay GUILTY beyond reasonable doubt of
the crime of RAPE with Physical Injuries and Use of a Deadly Weapon, attended to
by the following aggravating circumstances: (1) it was committed in the dwelling of
the offended party without the latter giving any provocation; (2) the crime was
committed after unlawful entry; and (3) as a means to the commission of the crime a
wall was broken. There is no mitigating circumstance.

For these reasons, said accused is hereby sentenced to suffer the penalty
of RECLUSION PERPETUA.

With all the accessories of the law.

The accused is further ordered to pay unto the complainant the sum of SIXTY
THOUSAND (P60,000.00) PESOS for as moral damages and FIFTEEN THOUSAND
(P15,000.00) PESOS for and as exemplary damages.

Costs against the accused.

SO ORDERED.
Bondoy interposed this appeal claiming that the lower court erred in: (a) finding that he had sexual
intercourse with Patria on September 15, 1986; (b) giving credence to the testimonies of the
prosecution witnesses, and (c) finding that he is guilty of the crime and/or the prosecution was able
to prove his guilt beyond reasonable doubt.25

In disclaiming that he had sexual intercourse with Patria on September 15, 1986, appellant stresses
that since not one of the other prosecution witnesses was able to confirm or corroborate Patria's
testimony on the matter, this should be treated with extreme caution.

Even admitting that the testimony of a rape victim should be scrutinized carefully, considering the
nature of the crime and the fact that the offense is, more often than not, committed without any
witnesses, this Court has repeatedly held that when a woman says that she had been raped, she
says all that is necessary to show that rape was indeed committed. If her testimony meets the test of
credibility, the accused may be convicted solely on its basis.26 Thus, even if the victim's testimony on
how she was raped is uncorroborated, it is sufficient to justify a conviction for rape as long as it is
credible and positive and satisfies the court of the guilt of the accused beyond reasonable doubt.27

On the credibility of Patria and her testimony, the lower court stated:

The sordid details relates by private complainant about how, when, and where the
crime was committed belies the denial and protestation of innocence by the accused.
The deportment of Patria Sabularce in the witness stand, her willingness to divulge
(sic) even the intimate details of the incident and which cannot be a mere product of
her concoction (sic) are enough to convince the Court. 28

There is, therefore, no reason to doubt the veracity of the occurrence of the sexual intercourse
forced by appellant upon Patria. Contrary to appellant's contention, the testimony of the doctor who
examined her and the medical technologist who examined the specimen taken from her body, as
well as their respective written findings, corroborated rather than contradicted the complainant's
testimony that she was raped. Appellant's undue emphasis on the fact that the spermatoza found by
Lilia Colar in the said specimen was non-mobile and therefore, no sexual intercourse could have
occurred between appellant and Patria in the early morning of September 15, 1986, the specimen
having been examined within the 72-hour period which Dr. Sta. Rosa himself admitted as the
lifespan of a spermatoza, is, to say the least, a desperate but futile attempt at exoneration.

As correctly expounded by the Solicitor General, Dr. Sta. Rosa's testimony that a spermatoza has a
lifespan of 72 hours simply means that it can live up to 72 hours.29 By the same token, it can die
within the same period of time. Its presence in the specimen taken from the body of Patria reveals
that indeed she had sexual intercourse with appellant. As she herself swore at the witness stand,
before September 15, 1986, Patria had performed the connubial act with her husband on September
7, 1986.30

Nevertheless, it should be underscored that the presence or absence of spermatoza in the vagina is
not determinative of the commission of rape because a sperm test is not a sine qua non for the
successful prosecution of a rape case. Thus, the lack of spermatoza in the victim's body does not
even negate the crime of rape.31 The important element in rape is penetration of the pudenda and not
emission of seminal fluid.32

In assailing the lower court's stamp of credibility on the prosecution witnesses and their testimonies,
appellant enumerates what he considers as circumstances which believe the victim's claim of rape,
thus: Patria shouted for help only after she was stabbed in the forearm; her failure to shout when she
was raped; her conversation with appellant on a "topic different from the alleged crime of rape"
obviously referring to his order to Patria to drop the robbery charge against him; his having asked
her to go to town at 2:00 o'clock in the morning; his having asked for a key when the kitchen door
was already open after he had made his entry, and Patria's failure to testify that he removed his
pants.

As earlier stated, all of these circumstances may be subsumed under the subject of credibility of the
witnesses and their testimonies. Credibility, to state what is axiomatic, is the sole province of the trial
court.33 In the absence of any showing that it overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance that would have affected the result of the case, the trial
court's findings on the matter of credibility of witnesses will not be disturbed on appeal. 34 As such,
the trial court's evaluation of the credibility of the witnesses who appeared before it deserves this
Court's utmost respect, for it had the advantage of having directly observed their demeanor in
court.35 We can do no less in this case.

Indeed, while there might have been lapses in the complainant's testimony such as her failure to
testify on whether or not appellant removed his shorts before he violated her, the Court declares that
such detail, whether present or absent in the testimony of the complainant, is immaterial and its
absence is not sufficient to reverse the finding of guilt. Like Patria's failure to notice whether
appellant ejaculated while raping her, it is understandable that such detail might have escaped her
attention due to the stress of the moment. Furthermore, it was simply not asked of her. To repeat,
her statement that she was raped said it all.

Moreover, complainant's testimony is not only the basis for the finding of appellant's guilt beyond
reasonable doubt. Although circumstantial in nature, the testimonies of the other witnesses likewise
point to his culpability. That except for Dr. Sta. Rosa and Lilia Colar, the prosecution witnesses are
all related to the complainant does not in the least weaken the prosecution's theory of the crime, for
even the appellant's own witnesses are related to him. It must be stressed that the crime was
committed in a remote rural island where everyone is kin to each other. It is immaterial that the
prosecution witnesses are related to the victim as long as their testimonies, independent of the
relationship, are not inherently probable in themselves.36

Appellant's insistence that rape could not have been committed because of the alleged amorous
relationship between him and the complainant was correctly disregarded by the lower court. It noted
that Patria's behavior after the commission of the crime "speaks of a desire to abide by the law and
let our Courts of Justice take care of the wrong done to her."37 Hence, she proceeded immediately to
the police headquarters and later allowed an examination of her private parts. It should be added
that at the trial, she endured the shame and rigors of recalling her harrowing ordeal before complete
strangers. As the lower court correctly observed, if indeed Patria had an illicit relationship with
appellant even before he robbed her store, then certainly, she would not have lodged the robbery
charge, much less maintain the liaison, for such behavior would have been incongruous with the
alleged facts.

That appellant broke the wall of Patria's house to effect entry, also belies the claim that Patria was
his paramour. She could have allowed him easy access to her home as her husband was
elsewhere, but she refrained from doing so. Appellant would have the Court believe that Patria
openly asked him to come inside her house in the presence of his brother-in-law and, failing to get
what she wanted, stabbed him. To say the least, this tale is incredulous, if not absurd.

On the basis of testimonies presented, the Court is legally and morally convinced that appellant
committed the crime of rape qualified by the use of a deadly weapon, as defined and penalized in
Art. 335 of the Revised Penal Code. However, the Court finds inaccurate the ruling below that the
crime committed is "rape with physical injuries and use of deadly weapon." The physical injuries
sustained by Patria are part and parcel of the commission of the crime of rape, there being no
separate treatment in the case of physical harm done to Patria. Moreover, although mentioned in the
complaint filed by Patria, the crime of physical injuries (lesiones), whether serious, less serious or
slight, was not specifically alleged in the information. This is a deviation from the provision of Sec. 7,
Rule 110 of the Rules of Court, as the complaint or information did not even refer to the provision of
law punishing the offense of physical injuries. As such, the ambiguity of the information in this regard
should be resolved in favor of the accused.

The lower court correctly imposed the penalty of reclusion perpetua inasmuch as the crime was
attended by the aggravating circumstances of dwelling and unlawful entry.38 The qualifying
circumstance of breaking down a wall should be deemed absorbed in unlawful entry. There being
two aggravating and no mitigating circumstances, the penalty of death would have been the proper
penalty were it not for the fact that such penalty is constitutionally banned. The victim, being entitled
to moral damages under Art. 2219 of the Civil Code, appellant should be held liable in the amount of
fifty thousand (P50,000.00) as indemnity for the commission of the crime39 instead of the total
damages of seventy-five thousand (P75,000.00) imposed by the lower court.

WHEREFORE, the decision of the lower court convicting Rogelio Bondoy of the crime of rape by the
use of a deadly weapon and imposing him on the penalty of reclusion perpetua is hereby affirmed.
The same penalty is modified by directing Rogelio Bondoy to indemnify Patria V. Sabularce in the
amount of fifty thousand pesos (P50,000.00). Costs against the appellant.

SO ORDERED.

Feliciano, Bidin, Davide, Jr. and Melo, JJ., concur.

G.R. No. 104685 March 14, 1996

SABENA BELGIAN WORLD AIRLINES, petitioner,

vs.
HON. COURT OF APPEALS and MA. PAULA SAN AGUSTIN, respondents.

VITUG, J.:p

The appeal before the Court involves the issue of an airline's liability for lost luggage. The petition for review assails the decision of the Court
of Appeals,1 dated 27 February 1992, affirming an award of damages made by the trial court in a complaint filed by private respondent
against petitioner.

The factual background of the case, narrated by the trial court and reproduced at length by the
appellate court, is hereunder quoted:
On August 21, 1987, plaintiff was a passenger on board Flight SN 284 of defendant
airline originating from Casablanca to Brussels, Belgium on her way back to Manila.
Plaintiff checked in her luggage which contained her valuables, namely: jewelries
valued at $2,350.00; clothes $1,500.00 shoes/bag $150; accessories $75; luggage
itself $10.00; or a total of $4,265.00, for which she was issued Tag No. 71423. She
stayed overnight in Brussels and her luggage was left on board Flight SN 284.

Plaintiff arrived at Manila International Airport on September 2, 1987 and immediately

submitted her Tag No. 71423 to facilitate the release of her luggage but the luggage
was missing. She was advised to accomplish and submit a property Irregularity
Report which she submitted and filed on the same day.

She followed up her claim on September 14, 1987 but the luggage remained to be
missing.

On September 15, 1987, she filed her formal complaint with the office of Ferge
Massed, defendant's Local Manager, demanding immediate attention (Exh. "A").

On September 30, 1987, on the occasion of plaintiffs following up of her luggage

claim, she was furnished copies of defendant's telexes with an information that the
Burssel's Office of defendant found the luggage and that they have broken the locks
for identification (Exhibit "B"). Plaintiff was assured by the defendant that it has
notified its Manila Office that the luggage will be shipped to Manila on October 27,
1987. But unfortunately plaintiff was informed that the luggage was lost for the
second time (Exhibits "C" and "C-1").

At the time of the filing of the complaint, the luggage with its content has not been
found.

Plaintiff demanded from the defendant the money value of the luggage and its
contents amounting to $4,265.00 or its exchange value, but defendant refused to
settle the claim.

Defendant asserts in its Answer and its evidence tend to show that while it admits
that the plaintiff was a passenger on board Flight No. SN 284 with a piece of checked
in luggage bearing Tag No. 71423, the loss of the luggage was due to plaintiff's sole
if not contributory negligence; that she did not declare the valuable items in her
checked in luggage at the flight counter when she checked in for her flight from
Casablanca to Brussels so that either the representative of the defendant at the
counter would have advised her to secure an insurance on the alleged valuable
items and required her to pay additional charges, or would have refused acceptance
of her baggage as required by the generally accepted practices of international
carriers; that Section 9(a), Article IX of General Conditions of carriage requiring
passengers to collect their checked baggage at the place of stop over, plaintiff
neglected to claim her baggage at the Brussels Airport; that plaintiff should have
retrieved her undeclared valuables from her baggage at the Brussels Airport since
her flight from Brussels to Manila will still have to visit for confirmation inasmuch as
only her flight from Casablanca to Brussels was confirmed; that defendant
incorporated in all Sabena Plane Tickets, including Sabena Ticket No. 082422-
72502241 issued to plaintiff in Manila on August 21, 1987, a warning that "Items of
value should be carried on your person" and that some carriers assume no liability
for fragile, valuable or perishable articles and that further information may be
 obtained from the carrier for guidance;' that granting without conceding that
defendant is liable, its liability is limited only to US $20.00 per kilo due to plaintiffs
failure to declare a higher value on the contents of her checked in luggage and pay
additional charges thereon.2

The trial court rendered judgment ordering petitioner Sabena Belgian World Airlines to pay private
respondent Ma. Paula San Agustin —

(a) . . . US $4,265.00 or its legal exchange in Philippine pesos;

(b) . . . P30,000.00 as moral damages;

(c) . . . P10,000.00 as exemplary damages;

(d) . . . P10,000.00 as attorney's fees; and

(e) (t)he costs of the suit.3

Sabena appealed the decision of the Regional Trial Court to the Court of Appeals. The appellate
court, in its decision of 27 February 1992, affirmed in toto the trial court's judgment.

Petitioner airline company, in contending that the alleged negligence of private respondent should be
considered the primary cause for the loss of her luggage, avers that, despite her awareness that the
flight ticket had been confirmed only for Casablanca and Brussels, and that her flight from Brussels
to Manila had yet to be confirmed, she did not retrieve the luggage upon arrival in Brussels.
Petitioner insists that private respondent, being a seasoned international traveler, must have likewise
been familiar with the standard provisions contained in her flight ticket that items of value are
required to be hand-carried by the passenger and that the liability of the airline for loss, delay or
damage to baggage would be limited, in any event, to only US $20.00 per kilo unless a higher value
is declared in advance and corresponding additional charges are paid thereon. At the Casablanca
International Airport, private respondent, in checking in her luggage, evidently did not declare its
contents or value. Petitioner cites Section 5(c), Article IX, of the General Conditions of Carriage,
signed at Warsaw, Poland, on 02 October 1929, as amended by the Hague Protocol of 1955,
generally observed by International carriers, stating, among other things, that:

Passengers shall not include in his checked baggage, and the carrier may refuse to
carry as checked baggage, fragile or perishable articles, money, jewelry, precious
metals, negotiable papers, securities or other valuable.4

Fault or negligence consists in the omission of that diligence which is demanded by the nature of an
obligation and corresponds with the circumstances of the person, of the time, and of the place.
When the source of an obligation is derived from a contract, the mere breach or non-fulfillment of the
prestation gives rise to the presumption of fault on the part of the obligor. This rule is no different in
the case of common carriers in the carriage of goods which, indeed, are bound to observe not just
the due diligence of a good father of a family but that of "extraordinary" care in the vigilance over the
goods. The appellate court has aptly observed:

. . . Art. 1733 of the [Civil] Code provides that from the very nature of their business
and by reasons of public policy, common carriers are bound to observe extraordinary
diligence in the vigilance over the goods transported by them. This extraordinary
responsibility, according to Art. 1736, lasts from the time the goods are
 unconditionally placed in the possession of and received by the carrier until they are
delivered actually or constructively to the consignee or person who has the right to
receive them. Art. 1737 states that the common carrier's duty to observe
extraordinary diligence in the vigilance over the goods transported by them remains
in full force and effect even when they are temporarily unloaded or stored in transit.
And Art. 1735 establishes the presumption that if the goods are lost, destroyed or
deteriorated, common carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they had observed extraordinary diligence as
required in Article 1733.

The only exceptions to the foregoing extraordinary responsibility of the common

carrier is when the loss, destruction, or deterioration of the goods is due to any of the
following causes:

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;

(2) Act of the public enemy in war, whether international or civil;

(3) Act or omission of the shipper or owner of the goods;

(4) The character of the goods or defects in the packing or in the containers;

(5) Order or act of competent public authority.

Not one of the above excepted causes obtains in this case.5

The above rules remain basically unchanged even when the contract is breached by tort6 although
noncontradictory principles on quasi-delict may then be assimilated as also forming part of the
governing law. Petitioner is not thus entirely off track when it has likewise raised in its defense the
tort doctrine of proximate cause. Unfortunately for petitioner, however, the doctrine cannot, in this
particular instance, support its case. Proximate cause is that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury and without which the result
would not have occurred. The exemplification by the Court in one case7 is simple and explicit; viz:

(T)he proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately affecting the injury
as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result therefrom.

It remained undisputed that private respondent's luggage was lost while it was in the custody of
petitioner. It was supposed to arrive on the same flight that private respondent took in returning to
Manila on 02 September 1987. When she discovered that the luggage was missing, she promptly
accomplished and filed a Property Irregularity Report. She followed up her claim on 14 September
1987, and filed, on the following day, a formal letter-complaint with petitioner. She felt relieved when,
on 23 October 1987, she was advised that her luggage had finally been found, with its contents
intact when examined, and that she could expect it to arrive on 27 October 1987. She then waited
anxiously only to be told later that her luggage had been lost for the second time. Thus, the appellate
court, given all the facts before it, sustained the trial court in finding petitioner ultimately guilty of
"gross negligence" in the handling of private respondent's luggage. The "loss of said baggage not
only once but twice, said the appellate court, "underscores the wanton negligence and lack of care"
on the part of the carrier.

The above findings, which certainly cannot be said to be without basis, foreclose whatever rights
petitioner might have had to the possible limitation of liabilities enjoyed by international air carriers
under the Warsaw Convention (Convention for the Unification of Certain Rules Relating to
International Carriage by Air, as amended by the Hague Protocol of 1955, the Montreal Agreement
of 1966, the Guatemala Protocol of 1971 and the Montreal Protocols of 1975). In Alitalia vs.
Intermediate Appellate Court,8 now Chief Justice Andres R. Narvasa, speaking for the Court, has
explained it well; he said:

The Warsaw Convention however denies to the carrier availment of the provisions
which exclude or limit his liability, if the damage is caused by his wilful misconduct or
by such default on his part as, in accordance with the law of the court seized of the
case, is considered to be equivalent to wilful misconduct, or if the damage is
(similarly) caused . . . by any agent of the carrier acting within the scope of his
employment. The Hague Protocol amended the Warsaw Convention by removing the
provision that if the airline took all necessary steps to avoid the damage, it could
exculpate itself completely, and declaring the stated limits of liability not applicable if
it is proved that the damage resulted from an act or omission of the carrier, its
servants or agents, done with intent to cause damage or recklessly and with
knowledge that damage would probably result. The same deletion was effected by
the Montreal Agreement of 1966, with the result that a passenger could recover
unlimited damages upon proof of wilful misconduct.

The Convention does not thus operate as an exclusive enumeration of the instances
of an airline's liability, or as an absolute limit of the extent of that liability. Such a
proposition is not borne out by the language of the Convention, as this Court has
now, and at an earlier time, pointed out. Moreover, slight reflection readily leads to
the conclusion that it should be deemed a limit of liability only in those cases where
the cause of the death or injury to person, or destruction, loss or damage to property
or delay in its transport is not attributable to or attended by any wilful misconduct,
bad faith, recklessness, or otherwise improper conduct on the part of any official or
employee for which the carrier is responsible, and there is otherwise no special or
extraordinary form of resulting injury. The Convention's provisions, in short, do not
regulate or exclude liability for other breaches of contract by the carrier or
misconduct of its officers and employees, or for some particular or exceptional type
of damage. Otherwise, an air carrier would be exempt from any liability for damages
in the event of its absolute refusal, in bad faith, to comply with a contract of carriage,
which is absurd. Nor may it for a moment be supposed that if a member of the
aircraft complement should inflict some physical injury on a passenger, or maliciously
destroy or damage the latter's property, the Convention might successfully be
pleaded as the sole gauge to determine the carrier's liability to the passenger.
Neither may the Convention be invoked to justify the disregard of some extraordinary
sort of damage resulting to a passenger and preclude recovery therefor beyond the
limits set by said Convention. It is in this sense that the Convention has been
applied, or ignored, depending on the peculiar facts presented by each case.

The Court thus sees no error in the preponderant application to the instant case by the appellate
court, as well as by the trial court, of the usual rules on the extent of recoverable damages beyond
the Warsaw limitations. Under domestic law and jurisprudence (the Philippines being the country of
destination), the attendance of gross negligence (given the equivalent of fraud or bad faith) holds the
common carrier liable for all damages which can be reasonably attributed, although unforeseen, to
the non-performance of the obligation,9 including moral and exemplary damages. 10

WHEREFORE, the decision appealed from is AFFIRMED. Costs against petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 104685 March 14, 1996

SABENA BELGIAN WORLD AIRLINES, petitioner,

vs.
HON. COURT OF APPEALS and MA. PAULA SAN AGUSTIN, respondents.

VITUG, J.:p

The appeal before the Court involves the issue of an airline's liability for lost luggage. The petition for review assails the decision of the Court
of Appeals,1 dated 27 February 1992, affirming an award of damages made by the trial court in a complaint filed by private respondent
against petitioner.

The factual background of the case, narrated by the trial court and reproduced at length by the
appellate court, is hereunder quoted:

On August 21, 1987, plaintiff was a passenger on board Flight SN 284 of defendant
airline originating from Casablanca to Brussels, Belgium on her way back to Manila.
Plaintiff checked in her luggage which contained her valuables, namely: jewelries
valued at $2,350.00; clothes $1,500.00 shoes/bag $150; accessories $75; luggage
itself $10.00; or a total of $4,265.00, for which she was issued Tag No. 71423. She
stayed overnight in Brussels and her luggage was left on board Flight SN 284.

Plaintiff arrived at Manila International Airport on September 2, 1987 and immediately

submitted her Tag No. 71423 to facilitate the release of her luggage but the luggage
was missing. She was advised to accomplish and submit a property Irregularity
Report which she submitted and filed on the same day.

She followed up her claim on September 14, 1987 but the luggage remained to be
missing.
 On September 15, 1987, she filed her formal complaint with the office of Ferge
Massed, defendant's Local Manager, demanding immediate attention (Exh. "A").

On September 30, 1987, on the occasion of plaintiffs following up of her luggage

claim, she was furnished copies of defendant's telexes with an information that the
Burssel's Office of defendant found the luggage and that they have broken the locks
for identification (Exhibit "B"). Plaintiff was assured by the defendant that it has
notified its Manila Office that the luggage will be shipped to Manila on October 27,
1987. But unfortunately plaintiff was informed that the luggage was lost for the
second time (Exhibits "C" and "C-1").

At the time of the filing of the complaint, the luggage with its content has not been
found.

Plaintiff demanded from the defendant the money value of the luggage and its
contents amounting to $4,265.00 or its exchange value, but defendant refused to
settle the claim.

Defendant asserts in its Answer and its evidence tend to show that while it admits
that the plaintiff was a passenger on board Flight No. SN 284 with a piece of checked
in luggage bearing Tag No. 71423, the loss of the luggage was due to plaintiff's sole
if not contributory negligence; that she did not declare the valuable items in her
checked in luggage at the flight counter when she checked in for her flight from
Casablanca to Brussels so that either the representative of the defendant at the
counter would have advised her to secure an insurance on the alleged valuable
items and required her to pay additional charges, or would have refused acceptance
of her baggage as required by the generally accepted practices of international
carriers; that Section 9(a), Article IX of General Conditions of carriage requiring
passengers to collect their checked baggage at the place of stop over, plaintiff
neglected to claim her baggage at the Brussels Airport; that plaintiff should have
retrieved her undeclared valuables from her baggage at the Brussels Airport since
her flight from Brussels to Manila will still have to visit for confirmation inasmuch as
only her flight from Casablanca to Brussels was confirmed; that defendant
incorporated in all Sabena Plane Tickets, including Sabena Ticket No. 082422-
72502241 issued to plaintiff in Manila on August 21, 1987, a warning that "Items of
value should be carried on your person" and that some carriers assume no liability
for fragile, valuable or perishable articles and that further information may be
obtained from the carrier for guidance;' that granting without conceding that
defendant is liable, its liability is limited only to US $20.00 per kilo due to plaintiffs
failure to declare a higher value on the contents of her checked in luggage and pay
additional charges thereon.2

The trial court rendered judgment ordering petitioner Sabena Belgian World Airlines to pay private
respondent Ma. Paula San Agustin —

(a) . . . US $4,265.00 or its legal exchange in Philippine pesos;

(b) . . . P30,000.00 as moral damages;

(c) . . . P10,000.00 as exemplary damages;

(d) . . . P10,000.00 as attorney's fees; and

 (e) (t)he costs of the suit.3

Sabena appealed the decision of the Regional Trial Court to the Court of Appeals. The appellate
court, in its decision of 27 February 1992, affirmed in toto the trial court's judgment.

Petitioner airline company, in contending that the alleged negligence of private respondent should be
considered the primary cause for the loss of her luggage, avers that, despite her awareness that the
flight ticket had been confirmed only for Casablanca and Brussels, and that her flight from Brussels
to Manila had yet to be confirmed, she did not retrieve the luggage upon arrival in Brussels.
Petitioner insists that private respondent, being a seasoned international traveler, must have likewise
been familiar with the standard provisions contained in her flight ticket that items of value are
required to be hand-carried by the passenger and that the liability of the airline for loss, delay or
damage to baggage would be limited, in any event, to only US $20.00 per kilo unless a higher value
is declared in advance and corresponding additional charges are paid thereon. At the Casablanca
International Airport, private respondent, in checking in her luggage, evidently did not declare its
contents or value. Petitioner cites Section 5(c), Article IX, of the General Conditions of Carriage,
signed at Warsaw, Poland, on 02 October 1929, as amended by the Hague Protocol of 1955,
generally observed by International carriers, stating, among other things, that:

Passengers shall not include in his checked baggage, and the carrier may refuse to
carry as checked baggage, fragile or perishable articles, money, jewelry, precious
metals, negotiable papers, securities or other valuable.4

Fault or negligence consists in the omission of that diligence which is demanded by the nature of an
obligation and corresponds with the circumstances of the person, of the time, and of the place.
When the source of an obligation is derived from a contract, the mere breach or non-fulfillment of the
prestation gives rise to the presumption of fault on the part of the obligor. This rule is no different in
the case of common carriers in the carriage of goods which, indeed, are bound to observe not just
the due diligence of a good father of a family but that of "extraordinary" care in the vigilance over the
goods. The appellate court has aptly observed:

. . . Art. 1733 of the [Civil] Code provides that from the very nature of their business
and by reasons of public policy, common carriers are bound to observe extraordinary
diligence in the vigilance over the goods transported by them. This extraordinary
responsibility, according to Art. 1736, lasts from the time the goods are
unconditionally placed in the possession of and received by the carrier until they are
delivered actually or constructively to the consignee or person who has the right to
receive them. Art. 1737 states that the common carrier's duty to observe
extraordinary diligence in the vigilance over the goods transported by them remains
in full force and effect even when they are temporarily unloaded or stored in transit.
And Art. 1735 establishes the presumption that if the goods are lost, destroyed or
deteriorated, common carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they had observed extraordinary diligence as
required in Article 1733.

The only exceptions to the foregoing extraordinary responsibility of the common

carrier is when the loss, destruction, or deterioration of the goods is due to any of the
following causes:

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;

(2) Act of the public enemy in war, whether international or civil;

 (3) Act or omission of the shipper or owner of the goods;

(4) The character of the goods or defects in the packing or in the containers;

(5) Order or act of competent public authority.

Not one of the above excepted causes obtains in this case.5

The above rules remain basically unchanged even when the contract is breached by tort6 although
noncontradictory principles on quasi-delict may then be assimilated as also forming part of the
governing law. Petitioner is not thus entirely off track when it has likewise raised in its defense the
tort doctrine of proximate cause. Unfortunately for petitioner, however, the doctrine cannot, in this
particular instance, support its case. Proximate cause is that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury and without which the result
would not have occurred. The exemplification by the Court in one case7 is simple and explicit; viz:

(T)he proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately affecting the injury
as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to expect at the moment of
his act or default that an injury to some person might probably result therefrom.

It remained undisputed that private respondent's luggage was lost while it was in the custody of
petitioner. It was supposed to arrive on the same flight that private respondent took in returning to
Manila on 02 September 1987. When she discovered that the luggage was missing, she promptly
accomplished and filed a Property Irregularity Report. She followed up her claim on 14 September
1987, and filed, on the following day, a formal letter-complaint with petitioner. She felt relieved when,
on 23 October 1987, she was advised that her luggage had finally been found, with its contents
intact when examined, and that she could expect it to arrive on 27 October 1987. She then waited
anxiously only to be told later that her luggage had been lost for the second time. Thus, the appellate
court, given all the facts before it, sustained the trial court in finding petitioner ultimately guilty of
"gross negligence" in the handling of private respondent's luggage. The "loss of said baggage not
only once but twice, said the appellate court, "underscores the wanton negligence and lack of care"
on the part of the carrier.

The above findings, which certainly cannot be said to be without basis, foreclose whatever rights
petitioner might have had to the possible limitation of liabilities enjoyed by international air carriers
under the Warsaw Convention (Convention for the Unification of Certain Rules Relating to
International Carriage by Air, as amended by the Hague Protocol of 1955, the Montreal Agreement
of 1966, the Guatemala Protocol of 1971 and the Montreal Protocols of 1975). In Alitalia vs.
Intermediate Appellate Court,8 now Chief Justice Andres R. Narvasa, speaking for the Court, has
explained it well; he said:

The Warsaw Convention however denies to the carrier availment of the provisions
which exclude or limit his liability, if the damage is caused by his wilful misconduct or
by such default on his part as, in accordance with the law of the court seized of the
case, is considered to be equivalent to wilful misconduct, or if the damage is
(similarly) caused . . . by any agent of the carrier acting within the scope of his
employment. The Hague Protocol amended the Warsaw Convention by removing the
 provision that if the airline took all necessary steps to avoid the damage, it could
exculpate itself completely, and declaring the stated limits of liability not applicable if
it is proved that the damage resulted from an act or omission of the carrier, its
servants or agents, done with intent to cause damage or recklessly and with
knowledge that damage would probably result. The same deletion was effected by
the Montreal Agreement of 1966, with the result that a passenger could recover
unlimited damages upon proof of wilful misconduct.

The Convention does not thus operate as an exclusive enumeration of the instances
of an airline's liability, or as an absolute limit of the extent of that liability. Such a
proposition is not borne out by the language of the Convention, as this Court has
now, and at an earlier time, pointed out. Moreover, slight reflection readily leads to
the conclusion that it should be deemed a limit of liability only in those cases where
the cause of the death or injury to person, or destruction, loss or damage to property
or delay in its transport is not attributable to or attended by any wilful misconduct,
bad faith, recklessness, or otherwise improper conduct on the part of any official or
employee for which the carrier is responsible, and there is otherwise no special or
extraordinary form of resulting injury. The Convention's provisions, in short, do not
regulate or exclude liability for other breaches of contract by the carrier or
misconduct of its officers and employees, or for some particular or exceptional type
of damage. Otherwise, an air carrier would be exempt from any liability for damages
in the event of its absolute refusal, in bad faith, to comply with a contract of carriage,
which is absurd. Nor may it for a moment be supposed that if a member of the
aircraft complement should inflict some physical injury on a passenger, or maliciously
destroy or damage the latter's property, the Convention might successfully be
pleaded as the sole gauge to determine the carrier's liability to the passenger.
Neither may the Convention be invoked to justify the disregard of some extraordinary
sort of damage resulting to a passenger and preclude recovery therefor beyond the
limits set by said Convention. It is in this sense that the Convention has been
applied, or ignored, depending on the peculiar facts presented by each case.

The Court thus sees no error in the preponderant application to the instant case by the appellate
court, as well as by the trial court, of the usual rules on the extent of recoverable damages beyond
the Warsaw limitations. Under domestic law and jurisprudence (the Philippines being the country of
destination), the attendance of gross negligence (given the equivalent of fraud or bad faith) holds the
common carrier liable for all damages which can be reasonably attributed, although unforeseen, to
the non-performance of the obligation,9 including moral and exemplary damages. 10

WHEREFORE, the decision appealed from is AFFIRMED. Costs against petitioner.

SO ORDERED.

Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

Footnotes
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA
VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

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

That same day, the charred bodies of the four deemed passengers inside the bus were removed
and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her
name and in behalf of her five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600
as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City
for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the
Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim
in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and
their goods. For purposes of reference, we are reproducing the pertinent codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to all the circumstances of each
case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles
1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of
the passengers is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with a due
regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of
the willful acts or negligence of other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We
also agree with the trial court that there was negligence on the part of the defendant, through his
agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was
speeding, as testified to by one of the passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from the point where one of the front tires
burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150
meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its momentum carried it over a
distance of 150 meters before it fell into the canal and turned turtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question
is to what degree. The trial court was of the opinion that the proximate cause of the death of
Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself
and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though
he must have suffered physical injuries, perhaps serious, was still alive, and so damages were
awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory
definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely
causing him physical injuries, if through some event, unexpected and extraordinary, the overturned
bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire,
and the passenger is burned to death, one might still contend that the proximate cause of his death
was the fire and not the overturning of the vehicle. But in the present case under the circumstances
obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the
bus, this for the reason that when the vehicle turned not only on its side but completely on its back,
the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the
men with a lighted torch was in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that because it was dark (about
2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural
area where lanterns and flashlights were not available; and what was more natural than that said
rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested
from them. In other words, the coming of the men with a torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of some of its passengers and the call for
outside help. What is more, the burning of the bus can also in part be attributed to the negligence of
the carrier, through is driver and its conductor. According to the witness, the driver and the conductor
were on the road walking back and forth. They, or at least, the driver should and must have known
that in the position in which the overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when
spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither
the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not
to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier
come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the
amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to
include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to
attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial
court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them,
the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence,
one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in
the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the
bus changed immediately because they were already old, and that as a matter of fact, he had been
telling the driver to change the said tires, but that the driver did not follow his instructions. If this be
true, it goes to prove that the driver had not been diligent and had not taken the necessary
precautions to insure the safety of his passengers. Had he changed the tires, specially those in front,
with new ones, as he had been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to believe that the driver
operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical
injuries to others, and the complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose testimony he was banking to support the complaint,
either failed or appear or were reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect
of the said driver was negligent. In the public interest the prosecution of said erring driver should be
pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on
public utility buses. Let a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from
SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the
attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L.,
Endencia, and Felix, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 175023 July 5, 2010

GIOVANI SERRANO y CERVANTES, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BRION, J.:

We review in this petition for review on certiorari1 the decision2 dated July 20, 2006 of the Court of
Appeals (CA) in CA-G.R. CR No. 29090, entitled "People of the Philippines v. Giovani Serrano y
Cervantes." The CA modified the decision dated October 25, 20043 of the Regional Trial
Court4 (RTC), Branch 83, Quezon City, and found petitioner Giovani Serrano y Cervantes (petitioner)
guilty beyond reasonable doubt of attempted homicide, instead of frustrated homicide.
 The Facts

The case stemmed from a brawl involving 15 to 18 members of two (2) rival groups that occurred at
the University of the Philippines, Diliman, Quezon City (UP) on the evening of March 8, 1999. The
incident resulted in the stabbing of Anthony Galang (victim). Pinpointed as the victim’s assailant, the
petitioner was charged on March 11, 1999,5 with frustrated homicide in an Information that reads:

That on or about the 8th day of March 1999, in Quezon City, Philippines, the said accused, with
intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and employ
personal violence upon the person of one ANTHONY GALANG Y LAGUNSAD, by then and there
stabbing him on the stomach with a bladed weapon, thus performing all the acts of execution which
should have produced the crime of homicide, as a consequence but which nevertheless did not
produce it, by reason of some causes independent of the will of the accused; that is the timely and
able medical assistance rendered to said ANTHONY GALANG Y LAGUNSAD which prevented his
death, to the damage and prejudice of the said offended party.

CONTRARY TO LAW.6

On March 20, 2000, the petitioner pleaded not guilty. During the pre-trial, the prosecution and the
defense agreed to dispense with the testimonies of SPO2 Isagani dela Paz and the records
custodian of East Avenue Medical Center on the basis of the following stipulations: (1) SPO2 dela
Paz was the one who conducted the investigation; (2) SPO2 dela Paz took the statement of the
victim at the East Avenue Medical Center; (3) the victim was able to narrate the story of the incident
to SPO2 dela Paz before he underwent surgery; (4) SPO2 dela Paz prepared a referral-letter to the
city prosecutor; (5) SPO2 dela Paz had no personal knowledge of the incident; and (6) the victim
was confined for treatment at the East Avenue Medical Center from March 8, 1999, and the
documents referring to his confinement and treatment were duly executed and authenticated.7 After
these stipulations, trial on the merits immediately followed.

The Prosecution’s Evidence

The prosecution presented the victim, Arlo Angelo Arceo, Sgt. Rolando Zoleto, and SPO2 Roderick
Dalit.

These witnesses testified that, at around 9:30 p.m. of March 8, 1999, the victim and his two friends,
Arceo and Richard Tan, were on their way to Fatima II in Pook Dagohoy, UP Campus when they
came across Gener Serrano, the petitioner’s brother, who was with his group of friends. The victim,
Arceo and Tan approached Gener and his friends to settle a previous quarrel between Gener and
Roberto Comia. While the victim and Gener were talking, Comia suddenly appeared and hurled
invectives at Gener. Irked, Gener challenged Comia to a fistfight to settle their quarrel once and for
all; Comia rose to the challenge.

It was at this point that the petitioner appeared with other members of his group. He was a guest at a
party nearby, and was informed that a fight was about to take place between his brother and Comia.
Members of the victim’s group also started to show up.

The petitioner watched Gener fight Comia. When Gener lost the fight, the petitioner sought to get
back at the victim and his friends. Thus, the one-on-one escalated into a rumble between the
members of the two groups. During the rumble, and with the aid of the light emanating from two
Meralco posts, the victim and Arceo saw that the petitioner had a knife and used it to chase away
the members of their group. The petitioner also chased Arceo away, leaving the victim alone; the
petitioner’s group ganged up on him.
The petitioner went to where the victim was being beaten by Gener and one Obet Orieta. It was then
that the victim was stabbed. The petitioner stabbed the left side of his stomach while he was
standing, with Gener and Orieta holding his arms. The petitioner, Gener and Orieta thereafter
continued to beat and stone the victim until he fell into a nearby creek. The petitioner and his group
left him there.

From his fallen position, the victim inspected his stab wound and saw that a portion of his intestines
showed. On foot, he went to find help. The victim was initially taken to the UP Infirmary, but was
referred to the East Avenue Medical Center where he underwent surgery. The victim stayed at the
hospital for a week, and thereafter stayed home for one month to recuperate.

In the investigation that immediately followed, the victim identified the petitioner as the person who
stabbed him. In court, the victim likewise positively identified the petitioner as his assailant.

The Defense’s Evidence

The defense presented the testimonies of the petitioner, Gener, and George Hipolito.

The petitioner denied that he stabbed the victim. While he admitted that he was present during the
fistfight between Gener and Comia, he claimed that he and Gener left as soon as the rumble started.
The petitioner testified that as he and Gener were running away from the scene (to get back to the
party), bottles and stones were being thrown at them.

Hipolito, a participant in the rumble and a member of the petitioner’s group, narrated that the rumble
happened fast and he was too busy defending himself to take note of everything that happened. He
testified that he did not see the petitioner and Gener during the fight. He also testified that the place
where the rumble took place was near a steel manufacturing shop which provided some light to the
area. He further testified that the victim was left alone at the scene and he alone faced the rival
group.

The RTC Ruling

After considering the evidence, the trial court found the petitioner guilty beyond reasonable doubt of
frustrated homicide. It held, thus:

The bare statement of Giovani Serrano that he did not stab Anthony and he really does not know
who might have stabbed Anthony is outweighed by the positive identification by Anthony that
Giovani stabbed him frontally while they faced each other and also the circumstantial evidence
pointing to him as the wielder of the knife. Naturally, Giovani Serrano would feign ignorance as to
who stabbed Anthony but there is no way that he can avoid said direct and circumstantial
evidences.8

Accordingly, the RTC decision disposed:

WHEREFORE, the prosecution having established the guilt of accused GIOVANI SERRANO Y
CERVANTES of the offense of FRUSTRATED HOMICIDE beyond reasonable doubt, this Court
finds him GUILTY thereof and hereby sentences him to undergo imprisonment of FOUR (4) YEARS,
TWO (2) MONTHS and ONE (1) DAY of prision correccional as minimum to TEN (10) YEARS
of prision mayor as maximum.
Accused Giovani Serrano is hereby ordered to reimburse to complainant Anthony Galang the
medical expenses incurred by the latter in his hospitalization and treatment of his injuries in the
amount of FIFTEEN THOUSAND PESOS (₱15,000.00) and loss of income for one (1) month in the
amount of FOUR THOUSAND PESOS (₱4,000.00) or the total amount of NINETEEN THOUSAND
PESOS (₱19,000.00).

Costs against the accused.

SO ORDERED.9

The petitioner appealed to the CA. He claimed that the inconsistencies in the victim’s testimony
rendered it incredible, but the RTC disregarded the claim. The RTC also disregarded the evidence
that the dimness of the light in the crime scene made it impossible for the victim to identify his
assailant.

The CA Ruling

In its decision, the CA agreed with the RTC that the petitioner had been positively identified as the
victim’s assailant. The CA, however, ruled that the crime committed was attempted homicide, not
frustrated homicide. The CA ruled that the prosecution evidence failed to conclusively show that the
victim’s single stab wound was sufficient to cause death without timely medical intervention. In
support of its conclusion, the CA said that:

Thus, in Paddayuman v. People (G.R. No. 120344, 23 January 2002), appellant’s conviction for
attempted homicide was upheld because there was no evidence that the wounds suffered by the
victim were fatal enough as to cause her demise. Thus:

x x x petitioner stabbed the victim twice on the chest, which is indicative of an intent to kill. x x x This
can be gleaned from the testimony of Dr. Pintucan who did not categorically state whether or not the
wounds were fatal. x x x (I)n People v. Pilones, this Court held that even if the victim was wounded
but the injury was not fatal and could not cause his death, the crime would only be attempted.

Similarly, in the case of People v. Costales (G.R. No. 141154, 15 January 2002), where the offense
charged was frustrated murder, the trial court rendered a verdict of guilty for attempted murder
because the prosecution failed to present a medical certificate or competent testimonial evidence
which will prove that the victim would have died from her wound without medical intervention. Citing
People v. De La Cruz, the Supreme Court sustained the trial court and stressed that:

x x x the crime committed for the shooting of the victim was attempted murder and not frustrated
murder for the reason that "his injuries, though no doubt serious, were not proved fatal such that
without timely medical intervention, they would have caused his death.10

Thus, the CA modified the RTC decision. The dispositive portion of the CA decision reads:

WHEREFORE, with the MODIFICATIONS that:

1) Appellant is found GUILTY beyond reasonable doubt of the crime of ATTEMPTED

HOMICIDE and sentenced to suffer the indeterminate penalty of imprisonment of SIX (6)
MONTHS of arresto mayor as minimum to FOUR (4) YEARS and TWO (2) MONTHS of
prision correccional, as maximum;
 2) The actual damages is REDUCED to ₱3,858.50; and

3) The award of loss earnings is DELETED,

The appealed decision is AFFIRMED in all other respects.

SO ORDERED.11

Undaunted, the petitioner filed this present petition.

The Issues

The petitioner raises the following issues for the Court’s consideration:

THE COURT OF APPEALS ERRED IN GIVING FULL FAITH AND CREDENCE TO THE
INCREDIBLE AND INCONSISTENT TESTIMONY OF THE PRIVATE COMPLAINANT.

THE COURT OF APPEALS ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE

WITNESSES FOR THE PROSECUTION, WHICH WERE BASED ON MERE SPECULATION AND
CONJECTURE.

THE COURT OF APPEALS GRAVELY ERRED IN OVERLOOKING THE FACT THAT THE
STABBING INCIDENT OCCURRED IN THE MIDDLE OF A STREET BRAWL, WHERE ANYBODY
OF THE NUMEROUS PARTICIPANTS COULD HAVE BEEN THE ASSAILANT.

THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE GUILT OF THE
ACCUSED-APPELLANT WAS PROVEN BEYOND REASONABLE DOUBT.12

The petitioner claims that the lower courts’ decisions were erroneous based on two-pronged
arguments – first, he cannot be convicted because he was not positively identified by a credible
testimony; and second, if he is criminally culpable, he can only be convicted of serious physical
injuries as the intent to kill the victim was not sufficiently proven.

The Court Ruling

We do not find merit in the petitioner’s arguments, and accordingly hold that the petition is devoid of
merit.

At the outset, we clarify that we shall no longer deal with the correctness of the RTC and the CA’s
appreciation of the victim’s identification of the petitioner as his assailant. This is a question of fact
that we cannot entertain in a Rule 45 review, save for exceptional reasons13 that must be clearly and
convincingly shown. As a rule, we accord the greatest respect for the findings of the lower courts,
especially the evaluation by the trial judge who had the distinct opportunity to directly hear and
observe the witnesses and their testimonies. As we explained in People v. Lucena14 –

[It] has been consistently held by this Court that the matter of assigning values to declarations on the
witness stand is best and most competently performed by the trial judge, who had the unmatched
opportunity to observe the witnesses and to assess their credibility by the various indicia available
but not reflected in the record. The demeanor of the person on the stand can draw the line between
fact and fancy. The forthright answer or the hesitant pause, the quivering voice or the angry tone, the
flustered look or the sincere gaze, the modest blush or the guilty blanch – these can reveal if the
witness is telling the truth or lying through his teeth.15

In this regard, the petitioner cites an exception – the lower courts’ misappreciation of the testimonial
evidence. Due consideration of the records, however, does not support the petitioner’s position. We
find that the RTC and the CA did not err in their appreciation of the evidence.

The petitioner was positively identified

The RTC’s and CA’s conclusions on the petitioner’s positive identification are supported by ample
evidence. We consider in this regard the following pieces of evidence of the prosecution: (1) the
manner of attack which was done frontally and at close range, thus allowing the victim to see his
assailant; (2) the lighting conditions at the scene of the stabbing, provided by two Meralco
posts;16 the scene was also illuminated by "white, fluorescent type" light coming from a steel
manufacturing shop;17 and (3) that the victim and the petitioner knew each other also allowed the
victim to readily identify the petitioner as his assailant.

The victim’s credibility is further strengthened by his lack of improper motive to falsely accuse the
petitioner of the crime. Human experience tells us that it is unnatural for a victim to accuse someone
other than his actual attacker; in the normal course of things, the victim would have the earnest
desire to bring the guilty person to justice, and no other. We consider, too, that the victim
consistently and positively, in and out of court, identified the petitioner as his assailant. The victim
testified that the petitioner was a neighbor who lived just a few houses away from his house.

We also take into account the evidence that the petitioner was the only one seen in possession of a
knife during the rumble. The victim testified that he saw the petitioner holding a knife which he used
to chase away others.18 Prosecution witness Arceo testified that he also saw the petitioner wielding a
knife during the rumble.

Based on these considerations, we find the victim’s identification of the petitioner as his assailant to
be positive and conclusive.

In contrast, we find the inconsistencies attributed to the victim to be minor and insufficient to discredit
his testimony. These inconsistencies refer to extraneous matters that happened during the rumble,
not directly bearing on the stabbing. They do not likewise relate to the material elements of the
crime.

We also cannot give any credit to the petitioner’s position that the victim’s failure to identify the
weapon used to stab him discredited his testimony. The victim’s failure to identify the weapon is
irrelevant under the circumstances, considering that the identity of the weapon is not an element of
the crime charged.

The intent to kill was sufficiently established

The petitioner posits that he can only be held liable for serious physical injuries since the intent to
kill, the necessary element to characterize the crime as homicide, was not sufficiently proven. The
assailant’s intent to kill is the main element that distinguishes the crime of physical injuries from the
crime of homicide. The crime can only be homicide if the intent to kill is proven.

Intent to kill is a state of mind that the courts can discern only through external manifestations, i.e.,
acts and conduct of the accused at the time of the assault and immediately thereafter. In Rivera v.
People,19 we considered the following factors to determine the presence of an intent to kill: (1) the
means used by the malefactors; (2) the nature, location, and number of wounds sustained by the
victim; (3) the conduct of the malefactors before, at the time, or immediately after the killing of the
victim; and (4) the circumstances under which the crime was committed and the motives of the
accused. We also consider motive and the words uttered by the offender at the time he inflicted
injuries on the victim as additional determinative factors.20

In this case, the records show that the petitioner used a knife in his assault. The petitioner stabbed
the victim in the abdomen while the latter was held by Gener and Orieta. Immediately after the
stabbing, the petitioner, Gener and Orieta beat and stoned the victim until he fell into a creek. It was
only then that the petitioner, Gener and Orieta left. We consider in this regard that the stabbing
occurred at around 9:30 p.m. with only the petitioner, Gener, Orieta, and the victim as the only
persons left in the area. The CA aptly observed that a reasonable inference can be made that the
victim was left for dead when he fell into the creek.

Under these circumstances, we are convinced that the petitioner, in stabbing, beating and stoning
the victim, intended to kill him. Thus, the crime committed cannot be merely serious physical injuries.

Frustrated homicide versus attempted homicide

Since the victim did not die, the issue posed to us is the stage of execution of the crime. The lower
courts differed in their legal conclusions.

On one hand, the RTC held that the crime committed reached the frustrated stage since the victim
was stabbed on the left side of his stomach and beaten until he fell into a creek.21 The RTC also took
into account that the victim had to be referred by the UP Infirmary to the East Avenue Medical
Center for medical treatment.22

On the other hand, the CA ruled that the crime committed only reached the attempted stage as there
was lack of evidence that the stab wound inflicted was fatal to cause the victim’s death.23 The CA
observed that the attending physician did not testify in court.24 The CA also considered that the
Medical Certificate and the Discharge Summary issued by the East Avenue Medical Center fell short
of "specifying the nature or gravity of the wound."25

Article 6 of the Revised Penal Code, as amended defines the stages of a felony in the following
manner:

ART. 6. Consummated, frustrated, and attempted felonies. – Consummated felonies, as well as

those which are frustrated and attempted, are punishable.

A felony is consummated when all the elements necessary for its execution and accomplishment are
present; and it is frustrated when the offender performs all the acts of execution which would
produce the felony as a consequence but which, nevertheless, do not produce it by reason of
causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly by overt
acts, and does not perform all the acts of execution which should produce the felony by reason of
some cause or accident other than his own spontaneous desistance. [Emphasis and italics
supplied.]

In Palaganas v. People,26 we made the following distinctions between frustrated and attempted
felony as follows:

1.) In frustrated felony, the offender has performed all the acts of execution which should
produce the felony as a consequence; whereas in attempted felony, the offender merely
commences the commission of a felony directly by overt acts and does not perform all the
acts of execution.

2.) In frustrated felony, the reason for the non-accomplishment of the crime is some cause
independent of the will of the perpetrator; on the other hand, in attempted felony, the reason
for the non-fulfillment of the crime is a cause or accident other than the offender’s own
spontaneous desistance.27

The crucial point to consider is the nature of the wound inflicted which must be supported by
independent proof showing that the wound inflicted was sufficient to cause the victim’s death without
timely medical intervention.

In discussing the importance of ascertaining the degree of injury sustained by a victim and its
importance in determining criminal liability, the Court in People v. Matyaong, said:28

In considering the extent of injury done, account must be taken of the injury to the function of the
various organs, and also the danger to life. A division into mortal and nonmortal wounds, if it could
be made, would be very desirable; but the unexpected complications and the various extraneous
causes which give gravity to the simplest cases, and, on the other hand, the favorable termination of
some injuries apparently the most dangerous, render any such classification impracticable. The
general classification into slight, severe, dangerous, and mortal wounds may be used, but the
possibility of the slight wound terminating with the loss of the person’s life, and the apparently mortal
ending with only a slight impairment of some function, must always be kept in mind. x x x

The danger to life of any wound is dependent upon a number of factors: the extent of the injury, the
form of the wound, the region of the body affected, the blood vessels, nerves, or organs involved,
the entrance of disease-producing bacteria or other organisms into the wound, the age and
constitution of the person injured, and the opportunities for administering proper surgical treatment.

When nothing in the evidence shows that the wound would be fatal without medical intervention, the
character of the wound enters the realm of doubt; under this situation, the doubt created by the lack
of evidence should be resolved in favor of the petitioner. Thus, the crime committed should be
attempted, not frustrated, homicide.29

Under these standards, we agree with the CA’s conclusion. From all accounts, although the stab
wound could have been fatal since the victim testified that he saw his intestines showed, no exact
evidence exists to prove the gravity of the wound; hence, we cannot consider the stab wound as
sufficient to cause death. As correctly observed by the CA, the victim’s attending physician did not
testify on the gravity of the wound inflicted on the victim. We consider, too, the CA’s observation that
the medical certifications issued by the East Avenue Medical Center merely stated the location of the
wound.30 There was also no proof that without timely medical intervention, the victim would have
died.31 This paucity of proof must necessarily favor the petitioner.
The view from the "frustrated" stage of the crime gives the same results. The elements of frustrated
homicide are: (1) the accused intended to kill his victim, as manifested by his use of a deadly
weapon in his assault; (2) the victim sustained fatal or mortal wound/s but did not die because of
timely medical assistance; and (3) none of the qualifying circumstance for murder under Article 248
of the Revised Penal Code, as amended, is present.32 Since the prosecution failed to prove the
second element, we cannot hold the petitioner liable for frustrated homicide.

The Penalty

Article 51 of the Revised Penal Code, as amended, provides that the imposable penalty for an
attempted crime shall be lower by two degrees than that prescribed by law for the consummated
felony.

Under Article 249, the crime of homicide is punished by reclusion temporal. Applying Article 61
(Rules of graduating penalties) and Article 71 (Graduated scales), two (2) degrees lower of reclusion
temporal is prision correccional which has a duration of six (6) months and one (1) day to six (6)
years.

Under the Indeterminate Sentence Law, the maximum term of the indeterminate sentence shall be
taken, in view of the attending circumstances that could be properly imposed under the rules of the
Revised Penal Code, and the minimum term shall be within the range of the penalty next lower to
that prescribed by the Revised Penal Code.33 Thus, the maximum term of the indeterminate
sentence shall be taken within the range of prision correccional, depending on the modifying
circumstances. In turn, the minimum term of the indeterminate penalty to be imposed shall be taken
from the penalty one degree lower of prision correccional, that is arresto mayor with a duration of
one (1) month and one (1) day to six (6) months.

In the absence of any modifying circumstance, the maximum term of the indeterminate penalty shall
be taken from the medium period of prision correccional or two (2) years and four (4) months and
one (1) day to four (4) years and two (2) months.34 The minimum term shall be taken within the range
of arresto mayor. Hence, the penalty imposed by the CA against the petitioner of six (6) months of
arresto mayor, as minimum term of the indeterminate penalty, to four (4) years and two (2) months
of prision correccional, as maximum term of the indeterminate penalty, is correct.

The Civil Liability

We modify the CA decision with respect to the petitioner’s civil liability. The CA ordered actual
damages to be paid in the amount of ₱3,858.50. This is erroneous and contrary to the prevailing
jurisprudence.

In People v. Andres,35 we held that if the actual damages, proven by receipts during the trial, amount
to less than ₱25,000.00, the victim shall be entitled to temperate damages in the amount of
₱25,000.00, in lieu of actual damages. The award of temperate damages is based on Article 2224 of
the New Civil Code which states that temperate or moderate damages may be recovered when the
court finds that some pecuniary loss was suffered but its amount cannot be proven with certainty. In
this case, the victim is entitled to the award of ₱25,000.00 as temperate damages considering that
the amount of actual damages is only ₱3,858.50. The amount of actual damages shall be deleted.

Lastly, we find that the victim is also entitled to moral damages in the amount of ₱10,000.00 in
accordance with settled jurisprudence.36 Under Article 2219, paragraph 1 of the New Civil Code, the
victim is entitled to moral damages in a criminal offense resulting in physical injuries.
1avv phi 1
WHEREFORE, we hereby DENY the petition. The decision, dated July 20, 2006, of the Court of
Appeals in CA-G.R. CR No. 29090, finding petitioner Giovani Serrano y Cervantes guilty beyond
reasonable doubt of Attempted Homicide, is AFFIRMED with MODIFICATION. The petitioner is
ORDERED to PAY the victim, Anthony Galang, the following amounts:

(1) ₱25,000.00 as temperate damages; and

(2) ₱10,000.00 as moral damages.

Costs against the petitioner.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

LUCAS P. BERSAMIN ROBERTO A. ABAD*

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

CONCHITA CARPIO MORALES

Associate Justice
Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it
is hereby certified that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA
Chief Justice
 FIRST DIVISION

[G.R. No. 4935. October 25, 1909. ]

THE UNITED STATES, Plaintiff-Appellee, v. JAMES L. BROBST, Defendant-Appellant.

Kincaid & Hurd for Appellant.

Attorney-General Villamor for Appellee.

SYLLABUS

1. HOMICIDE; RIGHT TO EJECT TRESPASSERS; CRIMINAL RESPONSIBILITY. — The right to use force or
violence in the expulsion of an intruder upon one’s premises, when it exists, is strictly limited to the use of
such a degree of force as may be necessary under all the circumstances, to obtain the end in view; and the
use of excessive force if unlawful.

2. ID.; DEATH RESULTING FROM A BLOW; REASONABLE DOUBT. — Held, That proof that a heavy blow with
the closed fist, over the lower left ribs, inflicted upon a person in apparent good health, was followed by the
death of that person in less than two hours, sustains a finding that death resulted from the infliction of the
blow, in the absence of proof of any intervening cause, and the circumstances being such as to afford no
ground for reasonable doubt that no extraneous cause did in fact intervene.

3. ID.; ID.; ID.; EVIDENCE. — The doubt to the benefit of which accused persons are entitled on a criminal
trial is a reasonable doubt, and not a mere whimsical or fanciful doubt, based on imagined but wholly
improbable possibilities, and unsupported by evidence.

4. ID.; ID. — Held, That death may result from a blow over or near the heart or in the abdominal region,
notwithstanding the fact that the blow leaves no outward mark of violence.

5. ID.; ID. — Where death results as the direct consequence of the use of illegal violence, the mere fact that
the diseased or weakened condition of the injured person contributed to his death, does not relieve the
illegal aggressor of criminal responsibility .

6. ID.; ID.; INTENTION; CRIMINAL RESPONSIBILITY. — One is not relieved, under the law in these Islands,
from criminal liability for the natural consequences for one’s illegal acts, merely because one does not intend
to produce such consequences.

7. ID.; ID.; ID.; ID. — But in such cases, the lack of intention, while it does not exempt from criminal
liability, taken into consideration as an extenuating circumstance.

DECISION

CARSON, J. :

The defendant, James L. Brobst, and another American named Mann, were engaged in work on a mine
located in the municipality of Masbate, where they gave employment to a number of native laborers. Mann
discharged one of these laborers named Simeon Saldivar, warned him not to come back on the premises,
and told the defendant not to employ him again, because he was a thief and a disturbing element with the
other laborers. A few days afterwards, some time after 6 o’clock on the morning of the 10th of July, 1907,
Saldivar, in company with three or four others, went to the mine to look for work. The defendant, who at the
time was dressing himself inside his tent, which was erected on the mining property, when he caught sight
of Saldivar, ordered him off the place, ex-claiming in bad Spanish, "Sigue, Vamus!" (Begone). Saldivar made
no move to leave, and although the order was repeated, merely smiled or grinned at the defendant, where-
upon the latter became enraged, took three steps toward Saldivar, and struck him a powerful blow with his
closed fist on the left side, just over the lower ribs, at the point where the handle of Saldivar’s bolo lay
against the belt from which it was suspended. On being struck, Saldivar threw up his hands, staggered (dio
vueltas — spun around helplessly) and without saying a word, went away in the direction of his sister’s
house, which stood about 200 yards (100 brazas) away, and about 100 feet up the side of a hill. He died as
he reached the door of the house and was buried some two or three days later.

The trial court found the defendant guilty of the crime of homicide (homicidio), marked with the extenuating
circumstances, denied in subsections 3 and 7 of article 9 of the Penal Code, in that the defendant "had no
intention of committing so grave an injury as that which he inflicted," and that he struck the blow "under
such powerful excitement as would naturally produce entire loss of reason and self-control." Sentence of sic
years and one day of prision mayor was imposed, and from this sentence defendant appealed to this court.

Counsel for the appellant, relying mainly on appellant’s claim that he did not strike Saldivar, and that he
merely pushed him lightly with the back of his open hand, and relying also on the lack of satisfactory proof
of the existence of lesions or external marks of violence on the body of the deceased, contend: first, that the
evidence fails to sustain a finding that the deceased came to his death as a result of injuries inflicted by the
defendant; and, second, that even if it be a fact that the defendant, in laying his hand upon the deceased,
contributed to his death, nevertheless, since the defendant had a perfect right to eject the deceased from
the mining property, he can not be held criminally liable for unintentional injuries inflicted in the lawful
exercise of this right.

Two witnesses, Dagapdap and Yotiga, who were standing close by at the time, swore positively that the
blow was delivered with the closed fist, from the shoulder (de dentro para fuera), and that it was a hard
blow; Dagapdap testifying that, "Al pegar el puñetazo, Simeon dio vueltas, y despues se marcho" (when the
blow was struck, Simeon staggered and afterwards went away); and Yotiga that "despues de dar el golpe se
retrocedio’y levanto los brazos" (after the blow was struck, he backed away and threw up his arms). The
testimony of these witnesses is clear, positive, and definite and is wholly uncontradicted, except for the
improbable story told by the accused in his own behalf, when he testified that he testified that seeing
Saldivar standing outside his tent, he told him twice to go away and then stepped up to him and pushed him
lightly with the back of his hand, which came in contact with the handle of Saldivar’s bolo, but not with
sufficient force to push him back or do him any injury. If it had been necessary to use force to compel
Saldivar to leave the place, it is at least highly improbable that the accused approaching him from the front
would have lightly placed the back of his open right hand on Saldivar’s left side, without attempting to seize
him, or to compel him to give ground.

Pedro Leocampo, the only other witness called at the trial who appears to have been present when the
incident occurred, corroborated the testimony of the witnesses Dagapdap and Yotiga as to all that occurred
prior to the actual infliction of the blow, which he did not see. He testified that at the time when the
accused, standing in his tent, ordered the deceased to leave, standing in his tent, ordered the deceased to
leave, he, the witness, was eating his breakfast, with his back to the accused and the deceased; that
hearing the order, he turned his head and saw the accused start toward the deceased with his arm
outstretched, but that at that moment he turned away and did not see the accused actually come up to,
strike or touch the deceased; that when he saw the accused approaching the deceased, the accused did not
have his fist clenched, but that he could not say whether the blow was struck with the open hand or the
closed fist, because at the moment when it is said the accused came up to and touched or struck the
deceased, the witness’s head was so turned that he could not and did not see what took place.

No evidence was introduced at the trial which in any wise tends to put in doubt the truth of the testimony of
these witnesses as to the fact that they were present at the time when and the place where the incident
occurred; and of this fact we are satisfied that there can be no reasonable doubt, although, as frequently
happens when ignorant witnesses are testifying in the courts in these Islands, their evidence is conflicting as
to the precise hour by the clock when it took place.

Some attempt is made to discredit the testimony of Yotiga, because it appears from the record that in
answer to certain questions on his examination-in-chief, he stated that when the blow was struck he was
some hundred brazas (200 yards) away. It developed, however, on examination by the trial judge, that this
answer was given under the impression that the question asked was the distance from the mine to the
house of the sister of the deceased, as to which considerable testimony was taken; and it is very clear from
all the testimony that both these witnesses were standing within a few yards of the defendant when he
struck the blow.

The testimony of Dagapdap is also criticized because, in answer to the opening questions on the
examination-in-chief, he spoke of the blow inflicted as a bofetada (a slap with the open hand on the cheek),
which, later on in his testimony, he changed to the word puñetazo (a blow with the first), as a result, it is
intimated, of suggestive questions by counsel for the prosecution. We do not think this criticism well
founded, or that the language of the witness on which it rests sustains the inference sought to be drawn
therefrom. In the first place, it must not be forgotten that the witness was manifestly an ignorant man,
unskilled in the use of words, and testifying in a remote province in a native dialect; and that his testimony
was interpreted into the Spanish of the record by an interpreter who might well have been mistaken in
selecting the precise Spanish equivalent of the word or words actually used by the witness, and whose use
of Spanish throughout the record does not demonstrate such precision and nicety in the use of words as to
justify the laying of too much stress on the phrasing adopted by him in the haste of interpretation in the
course of a trial in open court: so that, in our opinion, the detailed description of the manner in which the
blow was inflicted, as given by the witness without suggestion or assistance of any kind, is much more
decisive as to its nature than the word by which reference to it was made. And in the second place, as
appears from the Diccionario Enciclopedico de la Lengua Castellana and the Diccionario de la Lengua por la
Academia Española, the word "bofetada," when used strictly, connotes not merely a blow with the open
hand, but such a blow struck on the cheek or side of the face, a meaning which the whole testimony or the
witness clearly discloses it was not his intention to give to whatever word he did actually make use of in
referring to the act. The definition of the word "bofetada," as given in the former dictionary, is "a blow which
is given on the cheek (mejilla) with the open hand," and in the latter is "a blow given the open hand, on the
side of the face (carrillo) or cheek (mejilla) of another."
cralaw virtua1aw l ibrary

It has also been suggested that the testimony of the witnesses for the prosecution is inherently improbable,
because, as it is said, if the blow had been struck as describe by them, the injured person would necessarily
have "doubled up or over," and not, as appears from their testimony, thrown up his hands and staggered
away. No expert testimony was introduced at the trial upon this point, and while it may, perhaps, be
admitted that if the blow took effect in the abdominal region, common experience would justify us in
expecting as a result of the blow, that the injured person would "double up or over," it must not be
forgotten that the blow having been delivered over the ribs on the left side, it may as well have taken effect
in the region of the heart; in the absence of expert testimony, we do not think in that event, evidence that
the injured person threw up his hands and staggered away is necessarily in conflict the evidence of the
witnesses for the prosecution as to the weight of the blow and the place where it was inflicted.

We are satisfied that the evidence of record leaves no room for reasonable doubt with his closed first; and
that whatever authority the defendant may have had to eject the deceased from the mining property and to
use physical force to that end in case of need, the blow thus struck was far in excess of such authority, and
was, therefore, unlawful, and can not be excused or justified as an exercise of necessary force in the
exercise of a right. The defendant’s own testimony does not indicate that there was any danger to be
apprehended from Saldivar, and there is nothing in the record which would indicate that he would offer a
violent or even a substantial to an attempt to expel him from the mining property.

We are satisfied also that the deceased came to his death as result of the blow inflicted by the defendant.
Two or three days prior to his death he was employed as a laborer in defendant’s mine; his sister testified
that on the morning of the day he died, he left her house in apparent good health and went to the mines to
look for work; a short time afterwards he received a violent blow on his lower left side, a region of the body
where many of the vital organs are located; and immediately thereafter, he started up the short trail leading
to his sister’s house, and died as he reached the door. In the absence of evidence of any intervening cause,
we think there can be no reasonable doubt that his death resulted from the blow.

Counsel for appellant suggest that death may have been the result of some cause unknown, such as a fall,
an assault by robbers, or perchance a suicidal frenzy, intervening between the time when the accused was
last seen starting up the 200-yard trail to his sister’s house, and the time when, as she testified, he died just
as he reached her door, on his way back from the mine; and that the accused in entitled to the benefit of
the doubt. But the doubt which must be decided in favor of an accused person in a criminal trial is a
reasonable doubt, and not a mere whimsical and fanciful doubt, based upon imagined but wholly improbable
possibilities, unsupported by evidence; and while we do not hold that it is absolutely and morally impossible
that some other cause could have intervened to bring about the death of Saldivar, we do hold that there can
be no reasonable doubt in the mind of a reasonable man that death was in fact brought about by the blow
inflicted by the accused, and was not the result of some independent cause intervening during the very
short period of time prior to his death, during which he was not under observation by witnesses called at the
trial.

Counsel for the appellant enlarge on the fact that accepting defendant’s statement that he sent the
deceased away from the mines about a quarter past six, it would appear from the testimony of the sister of
the deceased that about two hours may have elapsed between that time and the time when he arrived at
her house. The sister fixed the time of the arrival of her brother at from 7 to 8 o’clock or possibly a little
later; but she appears to have been an ignorant woman who did not know how to read the face of a clock,
and it is quite clear that hers was no more than a rough estimate, based on the height of the sun, and the
most that can fairly be inferred from the testimony is that the deceased was struck early on the morning in
question, and that not long afterwards on the same morning, he died at the door of his sister’s house 200
yards away. But even if it be granted that two hours actually did elapse from the time the deceased left that
mines, until he reached his sister’s house, this interval is not long enough to materially weaken the
inference that the death resulted from the blow.

It is true that no autopsy was had on the body of the deceased, and that a medical officer called in by the
accused who saw the body, but who does not appear to have examined it very closely , certified that he
found no outward lesions or mark or violence; but this evidence is not sufficient to negative the existence of
internal lesions, for he medical authorities inform us that death may and often does result from a blow over
or near the heart of in the abdominal region, notwithstanding the fact that the blow leaves no outward mark
of violence; and there is evidence in the record of the discovery on the cadaver of two suspicious black
spots, one about the place where the blow was struck, and another at or near the umbilicus, though the
evidence fails to disclose the precise nature of these discolorations. (Medical Jurisprudence, Taylor, 12th Am.
Ed., pp. 310 and 388; Moulin’s Treatise on Surgery, Hamilton, part 2, chap. 1, p. 151; Tratado de Medicina
Legal por Legran de Sulle, Vol. II, pp. 206,207.)

It has been suggested that the deceased may have had a weak heart or some other diseased organ, and
that but for such physical defect death might not have ensued from the mere force of the blow inflicted by
the defendant. There is no evidence to this effect, and on the contrary there is testimony in the record that
on the morning before he died he was in apparent good health; and the fact that a few days before, he was
able to work in the mines, and that he came to the mines that day in search of work, renders it highly
improbable that he was suffering at that time from any grave organic weakness. But however this may have
been, it has been frequently and justly decided that where death result as a direct consequence of the use of
illegal violence, the mere fact that the diseased or weakened condition of the injured person contributed to
his death, does not relieve the illegal aggressor of criminal responsibility. (U. S. v. Luciano, 2 Phil. Rep., 96;
U. S. v. Montes, 6 Phil. Rep., 443; see also decisions of supreme court of Spain, March 10, 1871, and June
26, 1880.)

Counsel for appellant also contend that even if it be granted that in unlawfully exercising force upon the
person of the deceased, the appellant caused or contributed to his death, nevertheless he should at most be
convicted of homicidio por imprudencia temeraria (homicide as a result of reckless negligence), because,
manifestly, the unlawful act was not committed with intent to kill, and because, as counsel contend, the
striking of the blow by the appellant was not an act adapted, or likely (idoneo) to inflict a death wound
under ordinary circumstances, or reasonably calculated so to do. In support of this contention counsel cite
decisions of the supreme court of Spain of November 9, 1885, February 10, 1876, July 5, 1888, and July 12,
1890, and appears to rely especially on the former decision wherein sentence of homicidio por imprudencia
temeraria was imposed, the court holding "que es condicion esencial del delito de homicidio, que el hecho
material de que resulte sea umpulsado por voluntad libre encaminada por acto idoneo a causar la muerte o
algun mal fisico que pro consecuencia natural la produzca." cralaw virtua1aw l ibra ry

In that case, however, it was proven, and the court found that not only did the defendant no intend to kill
the deceased but also that he did not intend to do him any physical injury whatever; but in the case at bar
the evidence conclusively establishes the voluntary, intentional, and unlawful infliction by the accused of a
severe blow on the person of the deceased; and while it is true that the accused does not appear to have
intended to take the life of his victim, there can be no doubt that in thus striking the deceased, he intended
to do him some injury, at least to the extent of inflicting some degree of physical pain upon him, and he is,
therefore, criminally responsible for the natural, even if unexpected results of his act, under the provisions
of article 1 of the Penal Code, which prescribes that —

"Any 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." cralaw virtua 1aw lib rary

In such cases the law in these Islands does not excuse one from liability for the natural consequences of his
illegal acts merely because he did not intend to produce such consequence, but it does take that fact into
consideration as an extenuating circumstance, as did the trial judge in this case.

What has been said sufficiently disposes of all errors assigned by counsel for appellant, except certain
alleged errors of procedure in the court below which we do not think it necessary to discuss, because even if
it be admitted that such errors were committed, they do not appear to have in any wise prejudiced the
substantial rights of the defendant.

The judgment of conviction and the sentence imposed by the trial court should be and are hereby affirmed,
with the costs of this instance against the Appellant. So ordered.

Arellano, C.J., Torres and Mapa, JJ., concur.

Separate Opinions

MORELAND, J., with whom concurs Johnson, J., dissenting: chan rob1es v irt ual 1aw l ibra ry

The facts in this case, as claimed by the Government, are as follows: chan rob1e s virtual 1aw l ibra ry

The defendant, James L. Brobst, and another American, named Mann, were engaged in working a mine
belonging to them, located in the municipality of Masbate, where they gave employment to a number of
native laborers. Mann discharged one of these laborers, named Simeon Saldivar, ejected him forcibly from
the premises and warned him no to come back, and told the defendant no to employ him again or permit
him to be upon the premises because he was a thief and a disturbing element with the other laborers. A few
days afterwards, at about 6 o’clock in the morning or a bout the 10th of July, 1907, Saldivar, in company
with three or four others, went to the mine ostensibly to look for work. The defendant, who at that time was
dressing himself inside his tent, which was erected on the mining property, catching sought of Saldivar,
ordered him off the place. Saldivar made no move to leave, and, although the orders was repeated, still did
not leave, although he said and did nothing whatever; whereupon, as claimed by the Government, the
defendant became enraged, took three steps towards Saldivar and struck him a powerful blow with his fist
on the left side, just over the lower ribs. Saldivar turned around, without saying a word, and went in the
direction of his sister’s house, which stood about 200 yards away and about 100 feet up the side of a hill. He
was not seen by anybody after starting toward the house. About two hours later, slightly more of less, he
came to the front door of the house in a dying condition. He died just after being carried into the house and
was buried two or three days later.

The trial court found the defendant guilty of the crime of homicide, marked with the extenuating
circumstances defined in subsections 3 and 7 of article 9 of the Penal Code in that the defendant had no
intention of committing so grave an injury as that which he inflicted and that he struck the blow under such
powerful excitement as would naturally produce entire loss of reason and self-control. Sentence of six years
and one day of prision mayor was imposed, and from this sentence the defendant appealed to this court.

The claim of the defendant is that he was not enraged, that he did not strike Saldivar, the decedent, a blow
with his fist or a blow in any other manner, but that he simply stepped up to the decedent, put his open
hand against him and pushed him gently backwards.

To secure a conviction it was necessary for the Government to prove, first, that the defendant unlawfully
injured the decedent, and, second, that the decedent died because of that injury.

In this case the death is admitted. The cause of death is in dispute. The Government seeks to prove the
cause of death by circumstantial evidence. The prosecution asserts that it has proved by direct evidence a
blow or push delivered by the defendant to the person of the decedent, and, the subsequent death being
admitted, asks the court to make the deduction that the one resulted from the other. No autopsy was had.
No examination of the body, either before or after death, which merits the slightest consideration, was made
by the prosecution. No expert testimony worthy of the name was produce by the Government as to the
cause of death. Such as was given is not only wholly valueless, but positively ridiculous.

The prosecution claims to have proved by reliable evidence, and rests its case wholly upon that proposition,
that the defendant administered a powerful blow with the closed fist in the lower left side; that the death of
decedent occurred very soon thereafter, and that therefore, the irresistible inference is that he injury caused
the death. The claim of a proper conviction rests upon the proposition laid down generally by the authorities
that where there has been inflicted an injury sufficient to produce death, followed by the demise of the
injured person, the presumption arises that the injury was the cause of death, and, if no other cause is
suggested by the evidence, the conclusion becomes practically irresistible and need not be corroborated by
expert testimony. It should be noted here, however, in order to avoid confusion, that if there is no injury
sufficient to produce death, then that presumption does not arise and no conclusion as to the cause of death
can be indulged without additional proof.
The first question to be decided in this case is, Was the blow one which, in the ordinary acceptation of the
term, was sufficient to produce death? If it was, and that fact is established by the evidence beyond a
reasonable doubt, then the conviction of the defendant might possibly be sustained — a proposition not
necessary to decide under my view of the case. If it was not, then, there being an absolute failure of proof
as to the cause of death, the judgment of conviction must be reversed.

The resolution of this question depends, in this particular case, wholly upon the nature and character of the
blow delivered.

After a very careful and thorough examination of the proof adduced at the trial, I can not bring myself to
believe that the prosecution has established satisfactorily that the blow complained of was sufficient to
produce death.

I am not convinced that the claim of the Government that the alleged blow was delivered with the clenched
hand, or fist, has been sustained. Three witnesses were sworn on behalf of the Government to the question
of the blow alleged to have been delivered by the defendant to the decedent. One of them, Pedro Leocampo,
testified flatly and directly that the push or blow (he does not designate by express words which it was) was
administered with the open hand. At page 19 and following pages of the evidence he declares that, at the
beginning of the incident in question between the defendant and the decedent, he had his back toward the
participants, eating his breakfast; that he heard the defendant say to the decedent, "Fuera, go ahead,
vamus," and immediately turning his head he saw the defendant with his open hand extending toward and
touching the body of the decedent; that he saw decedent then turn and walk away. Later, in replying to
questions put by the trial judge, he said he was not quite sure whether the open hand of defendant actually
touched decedent’s body or not. It is unquestionable, however, that the movement of the defendant’s hand
which he saw was the blow or push which it is claimed caused the fatal injury; because it is admitted by all,
and the evidence also on that point is undisputed, that what the witness saw was at least the critical part of
the incident — the delivery of the alleged blow. Moreover, it is conceded that the alleged blow was not
delivered until after the defendant had uttered the words referred to and had stepped forward at least one
peace; and it is nowhere asserted or claimed by anybody that the defendant extended his hand toward the
decedent more than once or that more than one blow was given. It is evident, therefore, that what the
witness saw was the delivery of the very blow or push which the prosecution claims was the cause of death.
If can not well be imagined, in view of the testimony given by this witness, how the Government could fairly
claim otherwise. These conclusion as it is found in the record. In answer to a question put by the fiscal on
direct examination he said: jgc:chan ro bles.com. ph

"T. Que estuve de espalda con ellos y el americano no ha dicho nada y momentos despues dejo: ’fuera,’ ’go
ahead,’ le vi que tenia la mano abierta y esta mano toco el cuerpo de Simeon, pero no he visto como
estabe."cralaw virtua 1aw lib rary

After cross-examination the court questioned the witness as follows: jgc:chan robles .com.p h

"J. Oyo Vd. ruido de algun golpe cuando el acusado Brobst dijo ’fuera de aqui?’ — T. No he oido el golpe.

"J. En el momento de decir ’fuera de aqui,’ a que distancia estabe Simeon del acusado? T. A distancia de
mas de una vara.

"J. Y vio Vd. al acusado empujar al occiso Simeon? — T. No puedo decir si el acusado empujo a Simeon.

"J. Vio Vd. a Simeon Saldivar retroceder en el momento de decir el acusado ’fuera de aqui? — T. He visto
retroceder y dar las espaldas.

"J. Cuando hizo el ademan de empujarle, como tenia el puno — cerrado o abierto? — T. Tenia la mano
abierta.

"J. En que forma? — T. Tenia abierta la mano." cralaw virtua1aw l ibra ry

The testimony of this witness clearly discloses the fact that he saw the critical part of the event, that is, the
part wherein the hand of the defendant touched the body of the decedent in the alleged blow. At that
moment the hand of the defendant was open.

The witness Miguel Yotiga, another witness called by the Government, testified on pages 2,3, and 4 of the
record that during the month of July, 1907, he was at the place questions and answer, among others: jgc:chanro bles.c om.ph

"F. Sabe Vd. se durante el mes de Julio de 1907 que estuvo Vd. trabajando alli ha occurrido alguna cosa
extraoridinaria? — T. Se, senor.

"F. Que es? — T. El haber abofeteado el americano a untao.

"F. Estaba Vd. presente? — T. Se, señor.

"F. Relate Ve. fielmente en este juzgado todo lo que Vd. ha presenciado desde el principio hasta el fin. — T.
Yo he sido asalariado por el para acarrear arroz. Cuando llegue en las minmas era ya de noche, y al requerir
nuestro salario nos dijo Cristobal que nos dormiriamos alli porque el americano estabe ya durmiendo y que
Vds. pueden salir muy temprano por la manana. Se nos dio el salario per el acarreo del arroz, y despues de
darnos el salario se nos dijo que quedaramos para desayunar. Despues de desayunar llegaron tambien 4
hombres; el cocinero me dijo: ’Miguel, presente Vd. a estos 4 hombres por si el Sr. Brobst los quiere empliar
en el trabajo.’ Brobst so aim pueden trabajar esos 4 hombres. El Sr. Brobst se levanto para ver a aquellos 4
hombres, al ultimo de los cuales le pego una bofetada, y yo habia visto la bofetada que le dio en la cintura
en el bolo colocado en la cintura, e inmediatamente el hombre se dirigio a la casa de su hermana.

"F. A que distancia estaba Vd. de Mr. Brobst cuando dio el puñetazo a aquel individuo? — T. Uns distancia de
10 metros.

"F. Sabe Vd. por que el acusado habia dado puñetazo a aquel? — T. Que yo le he visto pegar con el bofeton,
pero que no se el motivo.

"F. Cruzaron entre ellos alguna disputa o rina antes que el acusado haya dado el golpe? — T. No se nada,
unicamente he visto que cuando llegaba Mr. Brobst dio el puñetazo." cralaw virt ua1aw li bra ry

Later on the witness says, in reply to leading questions, that the blow was struck with the closes hand and
was a heavy one.

It will be observed from this testimony that the witness, in making his statement in narrative form and
without the influence which particular words in questions frequently exerts on simple-minded witnesses,
used the words abofeteado and bofetada in speaking of the kind of blow which the defendant administered
to the decedent. The word bofetada, as well as abofeteado, means a blow with the open hand. It does not
mean a severe blow, and particularly not a blow with the fist or closed hand. It is much nearer in character
to a push than it is to a puñetazo, which is always a blow with the fist. It is a light slap rather than a blow. It
is the diminutive of the word bofeton; that is to say, if it can be called a blow at all, it is a gentler blow than
would be signified if the word bofeton were use. All of the dictionaries say that puñetazo is a blow with the
clenched hand, or fist, and that bofetada is a blow with the open hand. The dictionaries also say, in giving
the definition of bofeton, that it is the aumentativo de bofetada. In his testimony on pages 2, 3, and 4, the
witness continually and persistently used the word bofetada in describing the blow given by the defendant to
the decedent until the word puñetazo was suggested to him or put into his mouth, as it were, by the
questions of the fiscal. Then the witness himself picked up the word and thereafter used it. No amount or
species of word torture can make the word "slap" mean a blow with the fist. No more can bofetada be made
to mean puñetazo. A witness who, in describing the same blow, first uses the word bofetada and then, after
suggestion, changes it to puñetazo, provokes a contradiction in his testimony, which, if not explained,
militates strongly against his credibility. This is especially so when the change in the word goes to the very
essence of the cause of action, as it does in this case. This whole case depends upon whether the word
puñetazo or the word bofetada correctly describes the event out of which this action grows: chan rob1e s virtual 1aw l ibra ry

It is but repeating the general experience of those familiar with the trial of causes to say that suggestions to
a witness by the form and specific wording of a question are of very frequent occurrence. The suggestion
produces the same result whether wilfully made and received or innocently indulged, as was undoubtedly
the case here on the part of the fiscal. In the case of an ignorant or simpleminded witness, his vocabulary
being limited, he catches very readily, as a rule, the words used by the interrogator and, in his answers,
uses the exact words in which the question is propounded, without, perhaps, being in the least conscious
that the words he assumes do not exactly, sometimes not all closely, represent what he really wants to
express. These suggestions display one of the vices found by the courts in what are termed "leading
questions," and furnish a reason for the rule uniformly enforced in trial courts that they will not be
permitted.
The questions and answers already quoted illustrate this vice forcibly as to the use by the witness Yotiga of
the words bofetada and puñetazo. On page 5 of the evidence occurs another illustration. There the fact
sought to be elicited was whether the blow was gentle or severe. "F. Hizo despacio o fuerte? — T. Fuerte."
On page 12, 19, and 24 the following occurs: jgc: chan robles .com.p h

"F. Donde toco — directamente en el cuerpo o en el bolo? — T. Dio en el bolo.

"F. En que parte del bolo — en la vaina o en el puno? — T. En el puno del bolo.

"F. Era fuerte el puñetazo of flojo? — T. Fuerte.

"F. Cuando el acusado pego a Simeon Saldivar, estaba riendose o estaba furioso? — T. Furioso.

"F. Tenia cerrado el puno o abierto la mano? — T. Cerrado la mano." cralaw virt ua1aw li bra ry

In these illustrations, it will be observed, the witness is presented by the questions with only two words to
make use of in answering — one word the very extreme in one direction and the other word the very
extreme in the other. The ignorant or simple-minded witness whose vocabulary is extremely limited, who is
unused to court proceedings, is strongly tempted, and in many instances is virtually forced, to accept one
word or the other and thereby assume one extreme or the other in making his answers, although the word
made use of may not within many degrees express his real meaning. All of these questions were leading and
suggestive, and, judging from the testimony given anterior to those questions, especially by the witness
Yotiga, led to very marked contradictions of, or, at least, changes in, the evidence as previously presented.

The third and last witness for the Government who testified as to the blow was Fermin Dagapdap. In
describing the blow this witness from the first used the word puñetazo. This witness, however, stated that
he was at the time of the occurrence about 100 brazas (600 feet) from the participants. Later in his
testimony he attempts to claim that he gaves 100 brazas as the distance which the decedents was from his
brother’s house at the time of the occurrence. This, however, is very difficult to believe in view of the
evidence which he gave, as shown on page 25, which follows: jgc:cha nrob les.co m.ph

"F. A que distancia estaba Vd. de los dos cuando dio el puñetazo? — T. Unas 100 brazas.

"F. Vd. estaba a 100 brazas de distancia? — T. Se, senor.

"F. Indique Vd. aqui la distancia aproxemadamente de las 100 brazas que Vd. dice. — T. Aquella casa de
techo de hierro.

"F. Esa es la distancia donde Vd. estaba cuando dio el punetazo a Simeon Saldivar? — T. Si, señor." cralaw virtua 1aw lib rary

If, after all that questioning as to the distance he was away from the scene of the occurrence, and if, after
all the effort which the fiscal evidently made to induce in him a proper comprehension of the nature of the
question, the witness did not then understand, he displayed qualities, or the lack of them, which justly lead
to the conclusion that his testimony ought not to be given any weight whatever, especially where it is in
conflict with the testimony of any witness more reliable. Moreover, his manifest evasions on cross-
examination materially weaken any claim which may be made in favor of his credibility.

These witnesses for the Government are in conflict in other particulars. Yotiga declared that the incident
occurred at eight o’clock in the morning. Dagapdap swore that it occurred at four o’clock in the morning.
Yotiga declared that if happened while the workmen were eating breakfast; Dagapdap averred that it took
place after breakfast and while the men were working.

It seems to me, therefore, that the direct testimony adduced by the Government to prove that the
defendant delivered against the body of decedent a blow with his fist, is conspicuously weak, particularly
when we take into consideration that one of the Government witnesses flatly contradicts the other two in
every important point; and that testimony, taken in connection with all the circumstances surrounding and
accompanying the incident, seems rather to support the testimony and claim of the defendant that he did
not strike the decedent with his fist but gave him a push with his open hand.

The following are the said circumstances, present at the very time the act complained of was committed,
which go to prove that the blow, alleged to have been delivered against the body of the decedent was not
blow at all in the real sense of the word and was wholly insufficient ordinarily speaking, to cause any injury
whatever: chanro b1es vi rt ual 1aw li bra ry

The decedent at the time showed absolutely no signs of having been injured in the slightest degree.

(a) The three witnesses for the prosecution above referred to, Yotiga, Dagapdap and Leocampo, if their
testimony is to be believed, unite in declaring that they were looking the decedent full in the face when the
alleged blow was struck and that they saw thereon nothing but a perfectly natural expression. There is not
the slightest evidence to show that the countenance of the decedent betrayed even the faintest appearance
of Spain, distress or discomfort at the time the blow was delivered or at any time thereafter so long as he
was observed.

(b) Nobody heard any blow struck. It is concealed by every witness for the Government that there was no
sound of a blow. There were at the place where the incident occurred about twenty men, all of them as close
to the participants as were the three witnesses for the Government and yet, so far as can be gathered, not a
person heard the sound of a blow. In fact, only three of the twenty (the witnesses for the Government)
knew that anything unusual had happened at all.

(c) The decedent gave no cry of pain, made no exclamation, uttered no sound. This is the uncontradicted
proof.

(d) The decedent did not reel or stagger backward, forward or sideways, nor did he lose his equilibrium in
any way.

This is established by uncontradicted proof. Every witness for the Government declares that after the
delivery of the alleged blow the decedent remained in a perfectly upright attitude and in a natural position;
and that immediately after receiving the blow he turned and walked away.

One of the witnesses, after being sharply questioned by the fiscal, stated that on the delivery of the blow the
decedent stepped back, threw up his arms and walked away. The following is his testimony: jgc:chan roble s.com.p h

"El Sr. Brobst . . . le pego una bofetada y yo habia visto la bofetada que le dio en la cintura en el bolo
colocado en la cintura e immediatamente el hombre se dirigio a la casa de su hermana.

"F. En que posicion se quedo aquel individuo en el mismo momento de recibir el golpe? — T. Que
inmediatamente de haber recibido el puñetazo se marcho.

"F. Yo le pregunto a Vd. en el mismo momento de haber dado el puñetazo. — T. Que despues de dar el
golpe se retrocedioy levanto los brazos yen seguida se marcho." cralaw virtua1aw l ibra ry

It will be observed, from the evidence quoted, that the witness testified at first the decedent did nothing on
receiving the blow except to turn and walk away. This testimony the witness repeats in response to a second
question of the fiscal. The third question as to the same point was evidently very sharply put by the fiscal,
and that effort drew from the witness the additional statement, quite inconsistent with his two previous
ones, that the decedent stepped back and threw up his arms. Neither of the other two witnesses for the
Government saw this latter manifestation on the part of the decedent. One of them, Leocampo, testifies
directly that no such thing happened, and the other, Dagapdap, although one of those who claimed to have
been a eyewitness of the whole affair and who assumed to describe the whole incident in detail, fails to
mention the very important fact, if it is a fact, that the decedent threw up his arms. He testified that the
decedent simply whirled around and walked away.

The claim of the prosecution that the decedent staggered at the time of the alleged blow is based upon the
translation of "dio vueltas." One of the Government’s witnesses says that on the delivery of the blow the
decedent "dio vueltas y se marcho." So far as my researches go, no such interpretation can be given those
words. They do not mean that he "staggered." They mean simply that he turned or whirled around. This
might follow a blow or a push. No other witness uses these same words; but the other two witnesses for the
Government, in describing the same act of the decedent, used words which, it may fairly be assumed, in
order to maintain as much harmony as possible in the testimony of the Government’s witnesses, were
intended to mean the same thing. Such words are "se dirigio a la casa," and "volvi la cara y se marcho el
difunto." These words were used by the other two Government witnesses in describing the very same act to
which the other Government witness applied the description "dio vueltas." Those words can not possibly be
construed to mean that the decedent staggered.
(e) The decedent, according to the testimony of the prosecution, did not attempt to ward off, dodge or
escape the blow in any way.

He had abundant opportunity to do so. It is nowhere denied, but always admitted, that the defendant twice
ordered the decedent to leave the place and after delivering the order the second time advanced toward him
a peace or two. The decedent was fully warned. Yet the witnesses of the prosecution claim that, up to the
time the blow touched him, he made no move whatever. It is unbelievable that the decedent would permit
the defendant to walk up to him, after due warning, and plant a powerful blow in his abdomen without any
effort to dodge or escape and without the slightest effort to ward off the blow by movement of body, hand,
or arm. The throwing of the arms down to protect the abdomen in such a case is involuntary and almost
inevitable; and the fact that he did not do so points strongly to the conclusion that he was not struck as
claimed.

(f) The body of decedent exhibited no external sign of injury after death.

Two witnesses were sworn by the prosecution as to signs of injury upon the body of the decedent. One, the
father of decedent, laborer, testified that at 4 o’clock of the afternoon of the day after the alleged injury (the
alleged injury occurred at about 6 a. m.) he examined the body of decedent and found a black spot about
the size of a peso on the left side. The other witness, Alejandro Santiago, 70 years, farmer and herbalist,
declared that he examined the body, he does not remember when, and found a black spot on the ribs (he
does not remember on which side of the body) and another one on the navel. The cause of these spots, if
they really existed, is pure speculation. Certainly one blow could not make both. They may have been
caused by the decedent falling or by handling the at the time of or subsequent to death, or by ecchymosis.
No one knows. Certain it is that an examination of the body by a licensed physician, Hans Hoch, made the
day of the alleged injury, some hours thereafter, disclosed, so the physician testified, absolutely no external
sign or evidence of injury. While the absence of external signs of injury is not conclusive that there was no
injury, still such signs are usual in cases of this character and their absence is significant and important.

The weight of the testimony produced seems, therefore, to be that there were no external signs of injury
upon the body of decedent — certainly none that were fairly traceable to the blow, even if delivered in the
manner and with the force claimed by the Government.

It seems to me, therefore, that there is an essential and fatal conflict in the evidence of the prosecution. The
prosecution claims (and portions of the direct testimony of some of its witnesses tend to prove) that the
defendant gave the decedent a powerful blow with his fist, full in the left side; on the other hand, other
positions of that testimony are utterly and destructively contradictory to that claim. It is contrary to the
universal experience of life to assert that a man, receiving in his lower left side a powerful blow with the fist,
a blow which, it is claimed, was sufficiently forcible to cause death within a short time, can maintain an erect
and natural posture and exhibit absolutely no signs of pain. Experience also demonstrates that it is little
short of the impossible that one receiving such a blow would throw his arms up. I do not believe a case can
be cited where that has occurred. It is the experience of mankind that under such circumstances the person
always throws his arms down. Such a blow in or about the abdomen or in the lower ribs produces such a
shock to the nervous system, causes such a contraction of all the muscles thereabouts, induces such a
difficulty of respiration, and such great pain, that the person so struck is not only wholly unable to throw his
arms up but he is absolutely incapable of maintaining the body in an erect position. He involuntarily and
inevitably throws the arms down the abdomen and bends the body forward at the hips. In other words,
using which almost universal experience has taught accurately describes the position necessarily assumed
by the one receiving such a blow, he would "double up like a jackknife." The claim that the blow was a
powerful one delivered with the fist is so utterly inconsistent with the appearance and conduct of the
decedent at the time of the assault subsequent thereto as to lead almost necessarily to the conclusion that
no such blow was struck. Granting such a blow, it would be little short of the impossible, it certainly would
be most extraordinary, for the decedent to exhibit no signs of pain, maintain an erect and natural position,
preserve perfectly his equilibrium with the exception of stepping backward a little, turn in the ordinary way
and walk off the premises at his usual and natural gait and with his usual and natural carriage. The entire
absence of symptoms or evidence of injury at the time of the act complained of is, in my judgment, of the
very gravest importance. It speaks louder and stronger and clearer than all the other evidence in the case
as to whether or not the decedent was actually injured at that time.

On the other hand, the theory and claim of the defendant, that he simply stepped forward and pushed the
decedent backward lightly with the open hand, after ordering him to leave, explains fully and satisfactorily
every fact and every circumstance above mentioned as being so utterly inconsistent with the claim of the
prosecution.
(1) It explains why the decedent did not try to dodge or escape or protect himself by movement of the
body, or by using the hands and arms to defend himself from the assault of this enraged and furious men.
There was no violence from which he needed to protect himself.

(2) It explains why there was no cry of pain, no appearance of distress, no reeling, staggering, falling,
doubling up or other exhibition or sign of injury. It explains why he did not at once drop to the ground, as he
naturally and almost inevitably would on receiving a blow such as is sought to be established by the
prosecution. There was no violence or force to cause any of these things.

(3) It explains why decedent was able to walk away promptly at his usual gait and with his customary
carriage.

(4) It explains why there was no satisfactory proof of marks of violence or external signs of injury on the
body of the decedent.

(5) It explains why nobody of all who were present heard the sound of a blow, not even the witnesses for
the prosecution.

(6) It explains why, among the twenty persons there present, only a very small per cent knew that anything
unusual had taken place.

(7) It explains why the witness Yotiga first used the word "bofetada" instead of" puñetazo" or "golpe."

(8) It explains why the witness Leocampo testified that the defendant’s hand was open at the very time of
its contact with decedent’s person.

(9) It explains the entire lack of reason or motive on the part of defendant inducing him to inflict on the
decedent punishment as severe as would follow such a blow.

It seems, therefore, to be demonstrated from the evidence that the prosecution has not only not sufficiently
substantiated its claim that the blow was delivered with the fist, but has failed as well to show that any
blow, in the real sense of that term, was struck. Rather the strong tendency of the proof, taken as a whole,
together with all the circumstances, is to support the contention of the defendant that he simply pushed the
decedent back with the open hand. That being so, it is perfectly apparent that such an act was utterly
insufficient to produce death.

As stated at the outset, the Government rests its case wholly upon the proposition laid down by the
authorities that where there has been inflicted an injury sufficient to produce death, followed by the demise
of the injured person, the presumption arise that the injury was the cause of death, and, if no other cause is
suggested by the evidence, the conclusion becomes practically irresistible and need not be corroborated by
expert testimony. But it must always be remembered that the basis of and the reason for that presumption
is the injury sufficient to produce death. If the injury is not one capable of producing death, ordinarily
speaking, then no such presumption can possibly arise. The law invariably requires that there be established
by clearest proof the connection between the injury and the death, making the one result of the other.
Where the injury is one capable of producing death that connection of cause and effect is established
between the injury and death by the inherent nature of the act — its sufficiency to produce death. But where
the act is one not sufficient to produce death, then the relation of cause and effect is not established for the
reason that the act fails of the very quality from which the presumption of cause and effect springs, namely,
its capability of producing death. In such a case, when the Government has proved simply the injury and
death, it has done nothing. The connection between the two is wholly lacking. It is indispensable to a
conviction in such case that the Government prove the cause of death; and that cause must be proved in
addition to the fact of injury. This the Government has wholly failed to do. No effort was made to do so. The
Government rested its case entirely upon the presumption, which it assumed arose by reason of the injury
and death, to establish the relation of cause and effect between them. No autopsy was held. No one knows
the cause of death. The incident occurred at about 6 o’clock a.m. The decedent died at about 8 o’clock the
same morning. He left the scene of the event instantly. He was not seen again by anybody, so far as the
evidence shows, until the very moment of his death. Where he was, what he did, and what happened to him
during the two hours intervening the evidence does not disclose.

It being fairly established by the evidence that the defendant simply pushed the decedent, the remaining
question is simple. The land and premises where the event transpired belonged to the defendant. The
decedent, according to the evidence, was known to the defendant as a thief and as maker of mischief
among the workers in the mines. Only two days before the event from which this suit arose defendant had
seen the decedent forcibly ejected from these same premises by one Mann, a partner of defendant; and the
defendant was at that time advised by Mann that the decedent was a mischief-maker and a thief and should
not be allowed about the mines. The defendant had a right to protect his property from invasion particularly
by such as he believed decedent to be; and if, being upon the premises, decedent refused to leave when
given fair warning, the defendant had a right to eject him therefrom using no more force than was
necessary to that end. (Cooley, Torts, 1st Ed., 167; McCarty v. Fremont, 23 Cal., 196; Woodman v. Howell,
45 Ill., 367; Bucher v. Parmelee, 9 Vt., 352; People v. Payne, 8 Cal., 341; People v. Batchelder, 27 Cal.,
69.)

That he did not use more force than was necessary is established by the evidence as shown by the
preceding discussion.

Wills, on Circumstantial Evidence, says on page 291: jgc:chan robles. com.ph

"(3) In the proof of criminal homicide the true cause of death must be clearly established; and the possibility
of accounting for the event by self-inflicted violence, accident or natural cause, excluded; and only when it
has been proven that no other hypothesis will explain all the conditions of the case can it be safely and
justly concluded that it has been caused by intentional injury. But, in accordance with the principles which
govern the proof of every other element of the corpus delicti, it is not necessary that the cause of death
should be verified by direct and positive evidence; it is sufficient if it be proven by circumstantial evidence,
which produces a moral conviction in the minds of the jury, equivalent to that which is the result of positive
and direct evidence." cralaw vi rt ua1aw lib rary

In the People v. Bennet (49 N. Y., 144) the court said: jgc:chanro bles. com .ph

"In determining a question of fact from circumstantial evidence, there are two general rules to be observed:
(1) The hypothesis of delinquency or guilt should flow naturally from the facts proved, and be consistent
with them all. (2) The evidence must be such as to exclude, to a moral certainty, every hypothesis but that
of his guilt of the offense imputed to him; or, in other words, the facts proved must all be consistent with
and point to his guilt not only, but they must be inconsistent with his innocence." cralaw virt ua1aw lib ra ry

"On an indictment for murder, the prosecutor must prove that the blows caused the death; but, if he proves
that the blows were given by dangerous weapon — were followed by insensibility or other alarming
symptoms, and soon afterward by death; this is sufficient to impose it on the accused, to show that the
death was occasioned by some other cause." (U.S. v. Wiltberger, Fed, Cas. No. 16738)

"On trial for murder, the State’s failure to prove by what means the deceased came to his death is fatal to
its case." (Cole v. The State, 56 Ark., 50.)

"In order that a defendant may be properly convicted by circumstantial evidence, all the circumstances
proved must be consistent with each other, consistent with the hypothesis that the accused is guilty, and, at
the same time, inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis
except that of guilt."
cralaw virtua 1aw lib rary

(12 Cyc., 488; U.S. v. Reyes, 3 Phil. Rep., 3; People v. Ward, 105 Cal., 335; Carlton v. The People, 150 Ill.,
181; State v. Vinson, 37 La. Ann., 792; Commonwealth v. Costley, 118 Mass., 1; People v. Aikin, 66 Mich.,
460; U.S. v. Reder, 69 Fed. Rep., 965.)

The judgment of conviction should be reversed, the defendant declared not guilty and his discharge from
custody ordered.

Republic of the Philippines

SUPREME COURT
Manila
 EN BANC

G.R. No. L-11154 March 21, 1916

E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.

Crossfield and O'Brien for plaintiff.

Attorney-General Avanceña for defendant..

TRENT, J.:

This is an appeal by both parties from a judgment of the Court of First Instance of the city of Manila
in favor of the plaintiff for the sum of P14,741, together with the costs of the cause.

Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general damages which the
plaintiff suffered to P5,000, instead of P25,000 as claimed in the complaint," and (2) "in limiting the
time when plaintiff was entirely disabled to two months and twenty-one days and fixing the damage
accordingly in the sum of P2,666, instead of P6,000 as claimed by plaintiff in his complaint."

The Attorney-General on behalf of the defendant urges that the trial court erred: (a) in finding that
the collision between the plaintiff's motorcycle and the ambulance of the General Hospital was due
to the negligence of the chauffeur; (b) in holding that the Government of the Philippine Islands is
liable for the damages sustained by the plaintiff as a result of the collision, even if it be true that the
collision was due to the negligence of the chauffeur; and (c) in rendering judgment against the
defendant for the sum of P14,741.

The trial court's findings of fact, which are fully supported by the record, are as follows:

It is a fact not disputed by counsel for the defendant that when the plaintiff, riding on a
motorcycle, was going toward the western part of Calle Padre Faura, passing along the west
side thereof at a speed of ten to twelve miles an hour, upon crossing Taft Avenue and when
he was ten feet from the southwestern intersection of said streets, the General Hospital
ambulance, upon reaching said avenue, instead of turning toward the south, after passing
the center thereof, so that it would be on the left side of said avenue, as is prescribed by the
ordinance and the Motor Vehicle Act, turned suddenly and unexpectedly and long before
reaching the center of the street, into the right side of Taft Avenue, without having sounded
any whistle or horn, by which movement it struck the plaintiff, who was already six feet from
the southwestern point or from the post place there.

By reason of the resulting collision, the plaintiff was so severely injured that, according to Dr.
Saleeby, who examined him on the very same day that he was taken to the General
Hospital, he was suffering from a depression in the left parietal region, a would in the same
place and in the back part of his head, while blood issued from his nose and he was entirely
unconscious.

The marks revealed that he had one or more fractures of the skull and that the grey matter
and brain was had suffered material injury. At ten o'clock of the night in question, which was
the time set for performing the operation, his pulse was so weak and so irregular that, in his
opinion, there was little hope that he would live. His right leg was broken in such a way that
 the fracture extended to the outer skin in such manner that it might be regarded as double
and the would be exposed to infection, for which reason it was of the most serious nature.

At another examination six days before the day of the trial, Dr. Saleeby noticed that the
plaintiff's leg showed a contraction of an inch and a half and a curvature that made his leg
very weak and painful at the point of the fracture. Examination of his head revealed a notable
readjustment of the functions of the brain and nerves. The patient apparently was slightly
deaf, had a light weakness in his eyes and in his mental condition. This latter weakness was
always noticed when the plaintiff had to do any difficult mental labor, especially when he
attempted to use his money for mathematical calculations.

According to the various merchants who testified as witnesses, the plaintiff's mental and
physical condition prior to the accident was excellent, and that after having received the
injuries that have been discussed, his physical condition had undergone a noticeable
depreciation, for he had lost the agility, energy, and ability that he had constantly displayed
before the accident as one of the best constructors of wooden buildings and he could not
now earn even a half of the income that he had secured for his work because he had lost 50
per cent of his efficiency. As a contractor, he could no longer, as he had before done, climb
up ladders and scaffoldings to reach the highest parts of the building.

As a consequence of the loss the plaintiff suffered in the efficiency of his work as a
contractor, he had to dissolved the partnership he had formed with the engineer. Wilson,
because he was incapacitated from making mathematical calculations on account of the
condition of his leg and of his mental faculties, and he had to give up a contract he had for
the construction of the Uy Chaco building."

We may say at the outset that we are in full accord with the trial court to the effect that the collision
between the plaintiff's motorcycle and the ambulance of the General Hospital was due solely to the
negligence of the chauffeur.

The two items which constitute a part of the P14,741 and which are drawn in question by the plaintiff
are (a) P5,000, the award awarded for permanent injuries, and (b) the P2,666, the amount allowed
for the loss of wages during the time the plaintiff was incapacitated from pursuing his occupation. We
find nothing in the record which would justify us in increasing the amount of the first. As to the
second, the record shows, and the trial court so found, that the plaintiff's services as a contractor
were worth P1,000 per month. The court, however, limited the time to two months and twenty-one
days, which the plaintiff was actually confined in the hospital. In this we think there was error,
because it was clearly established that the plaintiff was wholly incapacitated for a period of six
months. The mere fact that he remained in the hospital only two months and twenty-one days while
the remainder of the six months was spent in his home, would not prevent recovery for the whole
time. We, therefore, find that the amount of damages sustained by the plaintiff, without any fault on
his part, is P18,075.

As the negligence which caused the collision is a tort committed by an agent or employee of the
Government, the inquiry at once arises whether the Government is legally-liable for the damages
resulting therefrom.

Act No. 2457, effective February 3, 1915, reads:

An Act authorizing E. Merritt to bring suit against the Government of the Philippine Islands
and authorizing the Attorney-General of said Islands to appear in said suit.
 Whereas a claim has been filed against the Government of the Philippine Islands by Mr. E.
Merritt, of Manila, for damages resulting from a collision between his motorcycle and the
ambulance of the General Hospital on March twenty-fifth, nineteen hundred and thirteen;

Whereas it is not known who is responsible for the accident nor is it possible to determine
the amount of damages, if any, to which the claimant is entitled; and

Whereas the Director of Public Works and the Attorney-General recommended that an Act
be passed by the Legislature authorizing Mr. E. Merritt to bring suit in the courts against the
Government, in order that said questions may be decided: Now, therefore,

By authority of the United States, be it enacted by the Philippine Legislature, that:

SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First Instance of the
city of Manila against the Government of the Philippine Islands in order to fix the
responsibility for the collision between his motorcycle and the ambulance of the General
Hospital, and to determine the amount of the damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, and the Attorney-General of the Philippine Islands is
hereby authorized and directed to appear at the trial on the behalf of the Government of said
Islands, to defendant said Government at the same.

SEC. 2. This Act shall take effect on its passage.

Enacted, February 3, 1915.

Did the defendant, in enacting the above quoted Act, simply waive its immunity from suit or did it
also concede its liability to the plaintiff? If only the former, then it cannot be held that the Act created
any new cause of action in favor of the plaintiff or extended the defendant's liability to any case not
previously recognized.

All admit that the Insular Government (the defendant) cannot be sued by an individual without its
consent. It is also admitted that the instant case is one against the Government. As the consent of
the Government to be sued by the plaintiff was entirely voluntary on its part, it is our duty to look
carefully into the terms of the consent, and render judgment accordingly.

The plaintiff was authorized to bring this action against the Government "in order to fix the
responsibility for the collision between his motorcycle and the ambulance of the General Hospital
and to determine the amount of the damages, if any, to which Mr. E. Merritt is entitled on account of
said collision, . . . ." These were the two questions submitted to the court for determination. The Act
was passed "in order that said questions may be decided." We have "decided" that the accident was
due solely to the negligence of the chauffeur, who was at the time an employee of the defendant,
and we have also fixed the amount of damages sustained by the plaintiff as a result of the collision.
Does the Act authorize us to hold that the Government is legally liable for that amount? If not, we
must look elsewhere for such authority, if it exists.

The Government of the Philippine Islands having been "modeled after the Federal and State
Governments in the United States," we may look to the decisions of the high courts of that country
for aid in determining the purpose and scope of Act No. 2457.

In the United States the rule that the state is not liable for the torts committed by its officers or agents
whom it employs, except when expressly made so by legislative enactment, is well settled. "The
Government," says Justice Story, "does not undertake to guarantee to any person the fidelity of the
officers or agents whom it employs, since that would involve it in all its operations in endless
embarrassments, difficulties and losses, which would be subversive of the public interest." (Claussen
vs. City of Luverne, 103 Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and
Beers vs. States, 20 How., 527; 15 L. Ed., 991.)

In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover damages from the state
for personal injuries received on account of the negligence of the state officers at the state fair, a
state institution created by the legislature for the purpose of improving agricultural and kindred
industries; to disseminate information calculated to educate and benefit the industrial classes; and to
advance by such means the material interests of the state, being objects similar to those sought by
the public school system. In passing upon the question of the state's liability for the negligent acts of
its officers or agents, the court said:

No claim arises against any government is favor of an individual, by reason of the

misfeasance, laches, or unauthorized exercise of powers by its officers or agents. (Citing
Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs. State, 86 N. C., 51, 53; 41 Am. Rep., 440;
Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Green vs. State, 73 Cal., 29; Bourn
vs. Hart, 93 Cal., 321; 27 Am. St. Rep., 203; Story on Agency, sec. 319.)

As to the scope of legislative enactments permitting individuals to sue the state where the cause of
action arises out of either fort or contract, the rule is stated in 36 Cyc., 915, thus:

By consenting to be sued a state simply waives its immunity from suit. It does not thereby
concede its liability to plaintiff, or create any cause of action in his favor, or extend its liability
to any cause not previously recognized. It merely gives a remedy to enforce a preexisting
liability and submits itself to the jurisdiction of the court, subject to its right to interpose any
lawful defense.

In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915, the Act of 1913,
which authorized the bringing of this suit, read:

SECTION 1. Authority is hereby given to George Apfelbacher, of the town of Summit,

Waukesha County, Wisconsin, to bring suit in such court or courts and in such form or forms
as he may be advised for the purpose of settling and determining all controversies which he
may now have with the State of Wisconsin, or its duly authorized officers and agents, relative
to the mill property of said George Apfelbacher, the fish hatchery of the State of Wisconsin
on the Bark River, and the mill property of Evan Humphrey at the lower end of Nagawicka
Lake, and relative to the use of the waters of said Bark River and Nagawicka Lake, all in the
county of Waukesha, Wisconsin.

In determining the scope of this act, the court said:

Plaintiff claims that by the enactment of this law the legislature admitted liability on the part of
the state for the acts of its officers, and that the suit now stands just as it would stand
between private parties. It is difficult to see how the act does, or was intended to do, more
than remove the state's immunity from suit. It simply gives authority to commence suit for the
purpose of settling plaintiff's controversies with the estate. Nowhere in the act is there a
whisper or suggestion that the court or courts in the disposition of the suit shall depart from
well established principles of law, or that the amount of damages is the only question to be
settled. The act opened the door of the court to the plaintiff. It did not pass upon the question
of liability, but left the suit just where it would be in the absence of the state's immunity from
 suit. If the Legislature had intended to change the rule that obtained in this state so long and
to declare liability on the part of the state, it would not have left so important a matter to mere
inference, but would have done so in express terms. (Murdock Grate Co. vs.
Commonwealth, 152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)

In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied upon and considered,
are as follows:

All persons who have, or shall hereafter have, claims on contract or for negligence against
the state not allowed by the state board of examiners, are hereby authorized, on the terms
and conditions herein contained, to bring suit thereon against the state in any of the courts of
this state of competent jurisdiction, and prosecute the same to final judgment. The rules of
practice in civil cases shall apply to such suits, except as herein otherwise provided.

And the court said:

This statute has been considered by this court in at least two cases, arising under different
facts, and in both it was held that said statute did not create any liability or cause of action
against the state where none existed before, but merely gave an additional remedy to
enforce such liability as would have existed if the statute had not been enacted. (Chapman
vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Melvin vs. State, 121 Cal., 16.)

A statute of Massachusetts enacted in 1887 gave to the superior court "jurisdiction of all claims
against the commonwealth, whether at law or in equity," with an exception not necessary to be here
mentioned. In construing this statute the court, in Murdock Grate Co. vs. Commonwealth (152
Mass., 28), said:

The statute we are discussing disclose no intention to create against the state a new and
heretofore unrecognized class of liabilities, but only an intention to provide a judicial tribunal
where well recognized existing liabilities can be adjudicated.

In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by the terms of the
statute of New York, jurisdiction of claims for damages for injuries in the management of the canals
such as the plaintiff had sustained, Chief Justice Ruger remarks: "It must be conceded that the state
can be made liable for injuries arising from the negligence of its agents or servants, only by force of
some positive statute assuming such liability."

It being quite clear that Act No. 2457 does not operate to extend the Government's liability to any
cause not previously recognized, we will now examine the substantive law touching the defendant's
liability for the negligent acts of its officers, agents, and employees. Paragraph 5 of article 1903 of
the Civil Code reads:

The state is liable in this sense when it acts through a special agent, but not when the
damage should have been caused by the official to whom properly it pertained to do the act
performed, in which case the provisions of the preceding article shall be applicable.

The supreme court of Spain in defining the scope of this paragraph said:

That the obligation to indemnify for damages which a third person causes to another by his
fault or negligence is based, as is evidenced by the same Law 3, Title 15, Partida 7, on that
the person obligated, by his own fault or negligence, takes part in the act or omission of the
third party who caused the damage. It follows therefrom that the state, by virtue of such
provisions of law, is not responsible for the damages suffered by private individuals in
consequence of acts performed by its employees in the discharge of the functions pertaining
to their office, because neither fault nor even negligence can be presumed on the part of the
state in the organization of branches of public service and in the appointment of its agents;
on the contrary, we must presuppose all foresight humanly possible on its part in order that
each branch of service serves the general weal an that of private persons interested in its
operation. Between these latter and the state, therefore, no relations of a private nature
governed by the civil law can arise except in a case where the state acts as a judicial person
capable of acquiring rights and contracting obligations. (Supreme Court of Spain, January 7,
1898; 83 Jur. Civ., 24.)

That the Civil Code in chapter 2, title 16, book 4, regulates the obligations which arise out of
fault or negligence; and whereas in the first article thereof. No. 1902, where the general
principle is laid down that where a person who by an act or omission causes damage to
another through fault or negligence, shall be obliged to repair the damage so done, reference
is made to acts or omissions of the persons who directly or indirectly cause the damage, the
following articles refers to this persons and imposes an identical obligation upon those who
maintain fixed relations of authority and superiority over the authors of the damage, because
the law presumes that in consequence of such relations the evil caused by their own fault or
negligence is imputable to them. This legal presumption gives way to proof, however,
because, as held in the last paragraph of article 1903, responsibility for acts of third persons
ceases when the persons mentioned in said article prove that they employed all the diligence
of a good father of a family to avoid the damage, and among these persons, called upon to
answer in a direct and not a subsidiary manner, are found, in addition to the mother or the
father in a proper case, guardians and owners or directors of an establishment or enterprise,
the state, but not always, except when it acts through the agency of a special agent,
doubtless because and only in this case, the fault or negligence, which is the original basis of
this kind of objections, must be presumed to lie with the state.

That although in some cases the state might by virtue of the general principle set forth in
article 1902 respond for all the damage that is occasioned to private parties by orders or
resolutions which by fault or negligence are made by branches of the central administration
acting in the name and representation of the state itself and as an external expression of its
sovereignty in the exercise of its executive powers, yet said article is not applicable in the
case of damages said to have been occasioned to the petitioners by an executive official,
acting in the exercise of his powers, in proceedings to enforce the collections of certain
property taxes owing by the owner of the property which they hold in sublease.

That the responsibility of the state is limited by article 1903 to the case wherein it
acts through a special agent (and a special agent, in the sense in which these words are
employed, is one who receives a definite and fixed order or commission, foreign to the
exercise of the duties of his office if he is a special official) so that in representation of the
state and being bound to act as an agent thereof, he executes the trust confided to him. This
concept does not apply to any executive agent who is an employee of the acting
administration and who on his own responsibility performs the functions which are inherent in
and naturally pertain to his office and which are regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.)

That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in
a decision, among others, of the 18th of May, 1904, in a damage case, the responsibility of
the state is limited to that which it contracts through a special agent, duly empowered by
a definite order or commission to perform some act or charged with some definite purpose
 which gives rise to the claim, and not where the claim is based on acts or omissions
imputable to a public official charged with some administrative or technical office who can be
held to the proper responsibility in the manner laid down by the law of civil responsibility.
Consequently, the trial court in not so deciding and in sentencing the said entity to the
payment of damages, caused by an official of the second class referred to, has by erroneous
interpretation infringed the provisions of articles 1902 and 1903 of the Civil Code. (Supreme
Court of Spain, July 30, 1911; 122 Jur. Civ., 146.)

It is, therefore, evidence that the State (the Government of the Philippine Islands) is only liable,
according to the above quoted decisions of the Supreme Court of Spain, for the acts of its agents,
officers and employees when they act as special agents within the meaning of paragraph 5 of article
1903, supra, and that the chauffeur of the ambulance of the General Hospital was not such an
agent.

For the foregoing reasons, the judgment appealed from must be reversed, without costs in this
instance. Whether the Government intends to make itself legally liable for the amount of damages
above set forth, which the plaintiff has sustained by reason of the negligent acts of one of its
employees, by legislative enactment and by appropriating sufficient funds therefor, we are not called
upon to determine. This matter rests solely with the Legislature and not with the courts.

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

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-46930 June 10, 1988

DALE SANDERS, AND A.S. MOREAU, JR, petitioners,

vs.
HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of First Instance of
Zambales, Olongapo City, ANTHONY M. ROSSI and RALPH L. WYERS, respondents.

CRUZ, J.:

The basic issue to be resolved in this case is whether or not the petitioners were performing their official duties when they did the acts for
which they have been sued for damages by the private respondents. Once this question is decided, the other answers will fall into place and
this petition need not detain us any longer than it already has.

Petitioner Sanders was, at the time the incident in question occurred, the special services director of
the U.S. Naval Station (NAVSTA) in Olongapo City. 1 Petitioner Moreau was the commanding officer
of the Subic Naval Base, which includes the said station. 2 Private respondent Rossi is an American
citizen with permanent residence in the Philippines,3 as so was private respondent Wyer, who died
two years ago. 4 They were both employed as gameroom attendants in the special services
department of the NAVSTA, the former having been hired in 1971 and the latter in 1969. 5

On October 3, 1975, the private respondents were advised that their employment had been
converted from permanent full-time to permanent part-time, effective October 18, 1975. 6 Their
reaction was to protest this conversion and to institute grievance proceedings conformably to the
pertinent rules and regulations of the U.S. Department of Defense. The result was a
recommendation from the hearing officer who conducted the proceedings for the reinstatement of
the private respondents to permanent full-time status plus backwages. The report on the hearing
contained the observation that "Special Services management practices an autocratic form of
supervision." 7

In a letter addressed to petitioner Moreau on May 17, 1976 (Annex "A" of the complaint), Sanders
disagreed with the hearing officer's report and asked for the rejection of the abovestated
recommendation. The letter contained the statements that: a ) "Mr. Rossi tends to alienate most co-
workers and supervisors;" b) "Messrs. Rossi and Wyers have proven, according to their immediate
supervisors, to be difficult employees to supervise;" and c) "even though the grievants were under
oath not to discuss the case with anyone, (they) placed the records in public places where others not
involved in the case could hear."

On November 7, 1975, before the start of the grievance hearings, a-letter (Annex "B" of the
complaint) purportedly corning from petitioner Moreau as the commanding general of the U.S. Naval
Station in Subic Bay was sent to the Chief of Naval Personnel explaining the change of the private
respondent's employment status and requesting concurrence therewith. The letter did not carry his
signature but was signed by W.B. Moore, Jr. "by direction," presumably of Moreau.

On the basis of these antecedent facts, the private respondent filed in the Court of First Instance of
Olongapo City a for damages against the herein petitioners on November 8, 1976.8 The plaintiffs
claimed that the letters contained libelous imputations that had exposed them to ridicule and caused
them mental anguish and that the prejudgment of the grievance proceedings was an invasion of their
personal and proprietary rights.

The private respondents made it clear that the petitioners were being sued in their private or
personal capacity. However, in a motion to dismiss filed under a special appearance, the petitioners
argued that the acts complained of were performed by them in the discharge of their official duties
and that, consequently, the court had no jurisdiction over them under the doctrine of state immunity.

After extensive written arguments between the parties, the motion was denied in an order dated
March 8, 1977, 9 on the main ground that the petitioners had not presented any evidence that their
acts were official in nature and not personal torts, moreover, the allegation in the complaint was that
the defendants had acted maliciously and in bad faith. The same order issued a writ of preliminary
attachment, conditioned upon the filing of a P10,000.00 bond by the plaintiffs, against the properties
of petitioner Moreau, who allegedly was then about to leave the Philippines. Subsequently, to make
matters worse for the defendants, petitioner Moreau was declared in a default by the trial court in its
order dated August 9, 1977. The motion to lift the default order on the ground that Moreau's failure to
appear at the pre-trial conference was the result of some misunderstanding, and the motion for
reconsideration of the denial of the motion to dismiss, which was filed by the petitioner's new
lawyers, were denied by the respondent court on September 7, 1977.

This petition for certiorari, prohibition and preliminary injunction was thereafter filed before this Court,
on the contention that the above-narrated acts of the respondent court are tainted with grave abuse
of discretion amounting to lack of jurisdiction.
We return now to the basic question of whether the petitioners were acting officially or only in their
private capacities when they did the acts for which the private respondents have sued them for
damages.

It is stressed at the outset that the mere allegation that a government functionary is being sued in his
personal capacity will not automatically remove him from the protection of the law of public officers
and, if appropriate, the doctrine of state immunity. By the same token, the mere invocation of official
character will not suffice to insulate him from suability and liability for an act imputed to him as a
personal tort committed without or in excess of his authority. These well-settled principles are
applicable not only to the officers of the local state but also where the person sued in its courts
pertains to the government of a foreign state, as in the present case.

The respondent judge, apparently finding that the complained acts were prima facie personal and
tortious, decided to proceed to trial to determine inter alia their precise character on the strength of
the evidence to be submitted by the parties. The petitioners have objected, arguing that no such
evidence was needed to substantiate their claim of jurisdictional immunity. Pending resolution of this
question, we issued a temporary restraining order on September 26, 1977, that has since then
suspended the proceedings in this case in the court a quo.

In past cases, this Court has held that where the character of the act complained of can be
determined from the pleadings exchanged between the parties before the trial, it is not necessary for
the court to require them to belabor the point at a trial still to be conducted. Such a proceeding would
be superfluous, not to say unfair to the defendant who is subjected to unnecessary and avoidable
inconvenience.

Thus, in Baer v. Tizon, 10 we held that a motion to dismiss a complaint against the commanding
general of the Olongapo Naval Base should not have been denied because it had been sufficiently
shown that the act for which he was being sued was done in his official capacity on behalf of the
American government. The United States had not given its consent to be sued. It was the reverse
situation in Syquia v. Almeda Lopez," where we sustained the order of the lower court granting a
where we motion to dismiss a complaint against certain officers of the U.S. armed forces also shown
to be acting officially in the name of the American government. The United States had also not
waived its immunity from suit. Only three years ago, in United States of America v. Ruiz, 12 we set
aside the denial by the lower court of a motion to dismiss a complaint for damages filed against the
United States and several of its officials, it appearing that the act complained of was governmental
rather than proprietary, and certainly not personal. In these and several other cases 13 the Court
found it redundant to prolong the other case proceedings after it had become clear that the suit could
not prosper because the acts complained of were covered by the doctrine of state immunity.

It is abundantly clear in the present case that the acts for which the petitioners are being called to
account were performed by them in the discharge of their official duties. Sanders, as director of the
special services department of NAVSTA, undoubtedly had supervision over its personnel, including
the private respondents, and had a hand in their employment, work assignments, discipline,
dismissal and other related matters. It is not disputed that the letter he had written was in fact a reply
to a request from his superior, the other petitioner, for more information regarding the case of the
private respondents.14 Moreover, even in the absence of such request, he still was within his rights in
reacting to the hearing officer's criticism—in effect a direct attack against him—-that Special
Services was practicing "an autocratic form of supervision."

As for Moreau,what he is claimed to have done was write the Chief of Naval Personnel for
concurrence with the conversion of the private respondents' type of employment even before the
grievance proceedings had even commenced. Disregarding for the nonce the question of its
timeliness, this act is clearly official in nature, performed by Moreau as the immediate superior of
Sanders and directly answerable to Naval Personnel in matters involving the special services
department of NAVSTA In fact, the letter dealt with the financial and budgetary problems of the
department and contained recommendations for their solution, including the re-designation of the
private respondents. There was nothing personal or private about it.

Given the official character of the above-described letters, we have to conclude that the petitioners
were, legally speaking, being sued as officers of the United States government. As they have acted
on behalf of that government, and within the scope of their authority, it is that government, and not
the petitioners personally, that is responsible for their acts. Assuming that the trial can proceed and it
is proved that the claimants have a right to the payment of damages, such award will have to be
satisfied not by the petitioners in their personal capacities but by the United States government as
their principal. This will require that government to perform an affirmative act to satisfy the
judgment, viz, the appropriation of the necessary amount to cover the damages awarded, thus
making the action a suit against that government without its consent.

There should be no question by now that such complaint cannot prosper unless the government
sought to be held ultimately liable has given its consent to' be sued. So we have ruled not only in
Baer but in many other decisions where we upheld the doctrine of state immunity as applicable not
only to our own government but also to foreign states sought to be subjected to the jurisdiction of our
courts. 15

The practical justification for the doctrine, as Holmes put it, is that "there can be no legal right against
the authority which makes the law on which the right depends.16 In the case of foreign states, the rule
is derived from the principle of the sovereign equality of states which wisely admonishes that par in
parem non habet imperium and that a contrary attitude would "unduly vex the peace of
nations." 17 Our adherence to this precept is formally expressed in Article II, Section 2, of our
Constitution, where we reiterate from our previous charters that the Philippines "adopts the generally
accepted principles of international law as part of the law of the land.

All this is not to say that in no case may a public officer be sued as such without the previous
consent of the state. To be sure, there are a number of well-recognized exceptions. It is clear that a
public officer may be sued as such to compel him to do an act required by law, as where, say, a
register of deeds refuses to record a deed of sale; 18 or to restrain a Cabinet member, for example,
from enforcing a law claimed to be unconstitutional; 19 or to compel the national treasurer to pay
damages from an already appropriated assurance fund; 20 or the commissioner of internal revenue to
refund tax over-payments from a fund already available for the purpose; 21 or, in general, to secure a
judgment that the officer impleaded may satisfy by himself without the government itself having to do
a positive act to assist him. We have also held that where the government itself has violated its own
laws, the aggrieved party may directly implead the government even without first filing his claim with
the Commission on Audit as normally required, as the doctrine of state immunity "cannot be used as
an instrument for perpetrating an injustice." 22

This case must also be distinguished from such decisions as Festejo v. Fernando, 23 where the Court
held that a bureau director could be sued for damages on a personal tort committed by him when he
acted without or in excess of authority in forcibly taking private property without paying just
compensation therefor although he did convert it into a public irrigation canal. It was not necessary
to secure the previous consent of the state, nor could it be validly impleaded as a party defendant,
as it was not responsible for the defendant's unauthorized act.

The case at bar, to repeat, comes under the rule and not under any of the recognized exceptions.
The government of the United States has not given its consent to be sued for the official acts of the
petitioners, who cannot satisfy any judgment that may be rendered against them. As it is the
American government itself that will have to perform the affirmative act of appropriating the amount
that may be adjudged for the private respondents, the complaint must be dismissed for lack of
jurisdiction.

The Court finds that, even under the law of public officers, the acts of the petitioners are protected by
the presumption of good faith, which has not been overturned by the private respondents. Even
mistakes concededly committed by such public officers are not actionable as long as it is not shown
that they were motivated by malice or gross negligence amounting to bad faith.24 This, to, is well
settled .25 Furthermore, applying now our own penal laws, the letters come under the concept of
privileged communications and are not punishable, 26 let alone the fact that the resented remarks are
not defamatory by our standards. It seems the private respondents have overstated their case.

A final consideration is that since the questioned acts were done in the Olongapo Naval Base by the
petitioners in the performance of their official duties and the private respondents are themselves
American citizens, it would seem only proper for the courts of this country to refrain from taking
cognizance of this matter and to treat it as coming under the internal administration of the said base.

The petitioners' counsel have submitted a memorandum replete with citations of American cases, as
if they were arguing before a court of the United States. The Court is bemused by such attitude.
While these decisions do have persuasive effect upon us, they can at best be invoked only to
support our own jurisprudence, which we have developed and enriched on the basis of our own
persuasions as a people, particularly since we became independent in 1946.

We appreciate the assistance foreign decisions offer us, and not only from the United States but also
from Spain and other countries from which we have derived some if not most of our own laws. But
we should not place undue and fawning reliance upon them and regard them as indispensable
mental crutches without which we cannot come to our own decisions through the employment of our
own endowments We live in a different ambience and must decide our own problems in the light of
our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always
with our own concept of law and justice.

The private respondents must, if they are still sominded, pursue their claim against the petitioners in
accordance with the laws of the United States, of which they are all citizens and under whose
jurisdiction the alleged offenses were committed. Even assuming that our own laws are applicable,
the United States government has not decided to give its consent to be sued in our courts, which
therefore has not acquired the competence to act on the said claim,.

WHEREFORE, the petition is GRANTED. The challenged orders dated March 8,1977, August
9,1977, and September 7, 1977, are SET ASIDE. The respondent court is directed to DISMISS Civil
Case No. 2077-O. Our Temporary restraining order of September 26,1977, is made PERMANENT.
No costs.

SO ORDERED.

Narvasa, Gancayco, Grino-Aquiño and Medialdea, JJ., Concur.

 [G.R. No. L-9990. September 30, 1957.]

ENRIQUE J. L. RUIZ and JOSE V. HERRERA, in their behalf and as minority stockholders of the
Allied Technologists, Inc., Plaintiffs-Appellants, v. HON. SOTERO B. CABAHUG, Secretary of
National Defense, Col. NICOLAS JIMENEZ, Head of the Engineer Group, Office of the Secretary of
National Defense, THE FINANCE OFFICER of the Department of National Defense, the AUDITOR of
the Department of the National Defense, PABLO D. PANLILIO and ALLIED TECHNOLOGISTS,
INC., Defendants-Appellees.

Diokno & Sison for Appellants.

L. D. Panlilio for appellee Pablo Panlilio.

Manuel Sales for defendant Allied Technologists, Inc.

Solicitor General Ambrosio Padilla and Assistant Solicitor Jose G. Bautista for appellees Hon.
Sotero Cabahug and Col. Nicolas Jimenez, Et. Al.

SYLLABUS

ACTION; PUBLIC OFFICERS; WHEN SUIT IS NOT ONE AGAINST THE GOVERNMENT. — Where the facts and
circumstances show that the Government does not any longer have interested in the subject matter of the
action which the defendants-officials have retained and refused to pay the plaintiffs, or to the person or
entity to which it should be paid, and plaintiffs do not seek to sue the Government to require it to pay the
amount or involve it in the litigation, Held: That the suit is not one against the Government or a claim
against it, but one against the officials to compel them to act in accordance with the rights to be established
by the contending architects, or to prevent them from making payment and recognition until the contending
architects have established their respective rights and interest in the funds retained and in the credit for the
work done.

DECISION

LABRADOR, J.:

Appeal from a judgment of the Court of First Instance of Manila dismissing plaintiffs’ amended complaint.

The facts upon which plaintiffs’ first cause of action are based are alleged as follows: cha nro b1es vi rtual 1aw lib rary

On July 31, 1950 the Secretary of National Defense accepted the bid of the Allied Technologists, Inc., to
furnish the architectural and engineering services in the construction of the Veterans Hospital at a price of
P302,700. The plans, specifications, sketches and detailed drawings and other architectural requirements
submitted by the Allied Technologists through three of its architects, Messrs. Enrique J. L. Ruiz, Jose V.
Herrera and Pablo D. Panlilio were approved by the United States Veterans Administration in Washington,
D.C. Because of the technical objection to the capacity of the Allied Technologists, Inc. to practice
architecture and upon the advice of the Secretary of Justice, the contract was signed on the part of the
Allied Technologists, Inc. by E. J. L. Ruiz as President and P. D. Panlilio as Architect. When the defendants-
officials paid the Allied Technologists the contract price for the architectural engineering service, they
retained 15 per cent of the sum due, for the reason that defendant Panlilio has asserted that he is the sole
and only architect of the Veterans Hospital to the exclusion of plaintiffs Ruiz and Herrera, assertion aided
and abetted by defendant Jimenez. Unless defendants are prevented from recognizing defendant Panlilio as
the sole architect of the contract and from paying the 15 per cent retained, plaintiffs will be deprived of the
monetary value of their professional services and their professional prestige and standing would be seriously
impaired.

Under the second cause of action the following facts are alleged: Under Title II of the contract entered into
between plaintiffs and the Secretary of National Defense, at any time prior to six months after completion
and acceptance of the work under Title I, the Government may direct the Allied Technologists, Inc. to
perform the services specified in said Title II. But notwithstanding such completion or acceptance, the
Government has refused to direct the plaintiffs to perform the work, entrusting such work to a group of
inexperienced and unqualified engineers.

The prayer based on the first cause of action is that defendants desist from recognizing Panlilio as the sole
and only architect of the Veterans Hospital and from paying him the 15 per cent retained as above indicated,
and that after hearing Ruiz, Herrera and Panlilio be recognized as the architects of the Veterans Hospital.
Under the second cause of action it is prayed that the defendants be directed to turn over the supervision
called for by Title II of the contract.

The court a quo dismissed the complaint on the ground that the suit involved is one against the
Government, which may not be sued without its consent. It is also held that as the majority of the
stockholders of the Allied Technologists, Inc. have not joined in the action, the minority suit does not lie. It
dismissed the second cause of action on the ground that the optional services under Title II have already
been performed.

On this appeal the plaintiffs assign the following errors: chan rob 1es virt ual 1aw li bra ry

THE LOWER COURT ERRED IN RULING THAT THE PRESENT SUIT IS ONE AGAINST THE GOVERNMENT AND
THEREFORE CANNOT BE VALIDLY ENTERTAINED BECAUSE THE GOVERNMENT CANNOT BE SUED WITHOUT
ITS CONSENT.

II

THE LOWER COURT ERRED IN HOLDING THAT THE PROVISIONS OF ACT 3083, AS AMENDED BY
COMMONWEALTH ACT 327 ARE APPLICABLE TO THIS CASE; IT ERRED IN HOLDING THAT PLAINTIFFS’
CLAIM SHOULD HAVE BEEN FILED WITH THE AUDITOR GENERAL.

III

THE LOWER COURT ERRED IN RULING THAT THE MINORITY SUIT IS UNTENABLE.

IV

THE LOWER COURT ERRED IN DISMISSING THE AMENDED COMPLAINT INJUNCTION.

Evidently, the plaintiffs-appellants do not question the dismissal of the second cause of action. So, the
appeal has relation to the first cause of action only.

A careful study of the allegations made in the amended complaint discloses the following facts and
circumstances: The contract price for the architectural engineering services rendered by the Allied
Technologists, Inc. and the plaintiffs is P231,600. All of that sum has been set aside for payment to the
Allied Technologists, Inc. and its architects, except the sum of P34,740, representing 15 per cent of the total
costs, which has been retained by the defendants-officials. Insofar as the Government of the Philippines is
concerned, the full amount of the contract price has been set aside and said full amount authorized to be
paid. The Government does not any longer have any interest in the amount, which the defendants-officials
have retained and have refused to pay to the plaintiffs, or to the person or entity to which it should be paid.
And the plaintiffs do not seek to sue the Government to require it to pay the amount or involve it in the
litigation. The defendant Jimenez is claimed to have "aided and abetted defendant Panlilio in depriving the
Allied Technologists, Inc. and its two architects (Ruiz and Herrera) of the honor and benefit due to them
under the contract Annex ‘C’ thereof." It is further claimed by plaintiffs that the defendant-officials are about
to recognize Panlilio as the sole architect and are about to pay him the 15 per cent which they had retained,
and thus deprive plaintiffs of their right to share therein and in the honor consequent to the recognition of
their right. The suit, therefore, is properly directed against the officials and against them alone, not against
the Government, which does not have any interest in the outcome of the controversy between plaintiffs on
the one hand, and Panlilio on the other. The suit is between these alone, to determine who is entitled to the
amount retained by the officials; and if the latter did aid and abet Panlilio in his pretense, to the exclusion
and prejudice of plaintiffs, it is natural that they alone, and not the Government, should be the subject of
the suit. Had said officials chosen not to take sides in the controversy between the architects, and had
disclaimed interest in said controversy, the suit would have been converted into one of interpleader. But
they have acted to favor one side, and have abetted him in his effort to obtain payment to him of the sum
remaining unpaid and credit for the work, to the exclusion of the plaintiffs. Hence, the suit.

We are not wanting in authority to sustain the view that the State need not be a party in this and parallel
cases.

"There is no proposition of law which is better settled than the general rule that a sovereign state and its
political subdivision cannot be sued in the courts except upon the statutory consent of the state. Numerous
decisions of this court to that effect may be cited; but it is enough to note that this court, in banc in a recent
case, State v. Woodruf (Miss.) , 150 So. 760, has so held; and therein overruled a previous decision which
had adjudicated that such consent could be worked out of a statute by implication, when express consent
was absent from the terms of that statute.

"But the rule applies only when the state or its subdivision is actually made a party upon the record, or is
actually necessary to be made a party in order to furnish the relief demanded by the suit. It does not apply
when the suit is against an officer or agent of the state, and the relief demanded by the suit requires no
affirmative official action on the part of the state nor the affirmative discharge of any obligation which
belongs to the state in its political capacity, even though the officers or agents who are made defendants
disclaim any personal interest in themselves and claim to hold or to act only by virtue of a title of the state
and as its agents and servants.

"Thus it will be found, as illustrative of what has been above said, that nearly all the cases wherein the rule
of immunity from suit against the state, or a subdivision thereof, has been applied and upheld, are those
which demanded a money judgment, and wherein the discharge of the judgment, if obtained, would require
the appropriation or an expenditure therefrom, which being legislative in its character is a province
exclusively of the political departments of the state. And in the less frequent number of cases where no
money judgment is demanded, and the rule of immunity is still upheld, it will be found in them that the
relief demanded would be, nevertheless, to require of the state or its political subdivision the affirmative
performance of some asserted obligation, belong to the state in its political capacity.

"When, therefore, officers or agents of the state, although acting officially and not as individuals, seize the
private property of a citizen, the state having no valid right or title thereto, or trespass upon that property
or damage it, the jurisdiction of the courts to eject the officers or agents, or to enjoin them from further
trespass or damage, in a suit by the owner against the officers or agents, is as well settled in the
jurisprudence of this country as is the general rule first above mentioned; for in such a suit no relief is
demanded which requires any affirmative action on the part of the state. Such a suit is only to the end that
the officers and agents of the state stay off the private property of the citizen and cease to damage that
property, the state having no right or title thereto." (State Mineral Lease Commission v. Lawrence [1934],
157 So. 857, 898- 899.)

We hold that under the facts and circumstances alleged in the amended complaint, which should be taken
on its face value, the suit is not one against the Government, or a claim against it, but one against the
officials to compel them to act in accordance with the rights to be established by the contending architects,
or to prevent them from making payment and recognition until the contending architects have established
their respective rights and interests in the funds retained and in the credit for the work done. The order of
dismissal is hereby reversed and set aside, and the case is remanded to the court a quo for further
proceedings. With costs against the defendants-appellees.

Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia and
Felix, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-26400 February 29, 1972

VICTORIA AMIGABLE, plaintiff-appellant,

vs.
NICOLAS CUENCA, as Commissioner of Public Highways and REPUBLIC OF THE
PHILIPPINES, defendants-appellees.

MAKALINTAL, J.:p

This is an appeal from the decision of the Court of First Instance of Cebu in its Civil Case No. R-5977, dismissing the plaintiff's complaint.

Victoria Amigable, the appellant herein, is the registered owner of Lot No. 639 of the Banilad Estate
in Cebu City as shown by Transfer Certificate of Title No. T-18060, which superseded Transfer
Certificate of Title No. RT-3272 (T-3435) issued to her by the Register of Deeds of Cebu on
February 1, 1924. No annotation in favor of the government of any right or interest in the property
appears at the back of the certificate. Without prior expropriation or negotiated sale, the government
used a portion of said lot, with an area of 6,167 square meters, for the construction of the Mango
and Gorordo Avenues.

It appears that said avenues were already existing in 1921 although "they were in bad condition and
very narrow, unlike the wide and beautiful avenues that they are now," and "that the tracing of said
roads was begun in 1924, and the formal construction in
1925." *

On March 27, 1958 Amigable's counsel wrote the President of the Philippines, requesting payment of the portion of her lot which had been
appropriated by the government. The claim was indorsed to the Auditor General, who disallowed it in his 9th Indorsement dated December 9,
1958. A copy of said indorsement was transmitted to Amigable's counsel by the Office of the President on January 7, 1959.

On February 6, 1959 Amigable filed in the court a quo a complaint, which was later amended on
April 17, 1959 upon motion of the defendants, against the Republic of the Philippines and Nicolas
Cuenca, in his capacity as Commissioner of Public Highways for the recovery of ownership and
possession of the 6,167 square meters of land traversed by the Mango and Gorordo Avenues. She
also sought the payment of compensatory damages in the sum of P50,000.00 for the illegal
occupation of her land, moral damages in the sum of P25,000.00, attorney's fees in the sum of
P5,000.00 and the costs of the suit.

Within the reglementary period the defendants filed a joint answer denying the material allegations of
the complaint and interposing the following affirmative defenses, to wit: (1) that the action was
premature, the claim not having been filed first with the Office of the Auditor General; (2) that the
right of action for the recovery of any amount which might be due the plaintiff, if any, had already
prescribed; (3) that the action being a suit against the Government, the claim for moral damages,
attorney's fees and costs had no valid basis since as to these items the Government had not given
its consent to be sued; and (4) that inasmuch as it was the province of Cebu that appropriated and
used the area involved in the construction of Mango Avenue, plaintiff had no cause of action against
the defendants.

During the scheduled hearings nobody appeared for the defendants notwithstanding due notice, so
the trial court proceeded to receive the plaintiff's evidence ex parte. On July 29, 1959 said court
rendered its decision holding that it had no jurisdiction over the plaintiff's cause of action for the
recovery of possession and ownership of the portion of her lot in question on the ground that the
government cannot be sued without its consent; that it had neither original nor appellate jurisdiction
to hear, try and decide plaintiff's claim for compensatory damages in the sum of P50,000.00, the
same being a money claim against the government; and that the claim for moral damages had long
prescribed, nor did it have jurisdiction over said claim because the government had not given its
consent to be sued. Accordingly, the complaint was dismissed. Unable to secure a reconsideration,
the plaintiff appealed to the Court of Appeals, which subsequently certified the case to Us, there
being no question of fact involved.

The issue here is whether or not the appellant may properly sue the government under the facts of
the case.

In the case of Ministerio vs. Court of First Instance of Cebu,1 involving a claim for payment of the
value of a portion of land used for the widening of the Gorordo Avenue in Cebu City, this Court,
through Mr. Justice Enrique M. Fernando, held that where the government takes away property from
a private landowner for public use without going through the legal process of expropriation or
negotiated sale, the aggrieved party may properly maintain a suit against the government without
thereby violating the doctrine of governmental immunity from suit without its consent. We there said:
.

... . If the constitutional mandate that the owner be compensated for property taken
for public use were to be respected, as it should, then a suit of this character should
not be summarily dismissed. The doctrine of governmental immunity from suit cannot
serve as an instrument for perpetrating an injustice on a citizen. Had the government
followed the procedure indicated by the governing law at the time, a complaint would
have been filed by it, and only upon payment of the compensation fixed by the
judgment, or after tender to the party entitled to such payment of the amount fixed,
may it "have the right to enter in and upon the land so condemned, to appropriate the
same to the public use defined in the judgment." If there were an observance of
procedural regularity, petitioners would not be in the sad plaint they are now. It is
unthinkable then that precisely because there was a failure to abide by what the law
requires, the government would stand to benefit. It is just as important, if not more
so, that there be fidelity to legal norms on the part of officialdom if the rule of law
were to be maintained. It is not too much to say that when the government takes any
property for public use, which is conditioned upon the payment of just compensation,
to be judicially ascertained, it makes manifest that it submits to the jurisdiction of a
court. There is no thought then that the doctrine of immunity from suit could still be
appropriately invoked.

Considering that no annotation in favor of the government appears at the back of her certificate of
title and that she has not executed any deed of conveyance of any portion of her lot to the
government, the appellant remains the owner of the whole lot. As registered owner, she could bring
an action to recover possession of the portion of land in question at anytime because possession is
one of the attributes of ownership. However, since restoration of possession of said portion by the
government is neither convenient nor feasible at this time because it is now and has been used for
road purposes, the only relief available is for the government to make due compensation which it
could and should have done years ago. To determine the due compensation for the land, the basis
should be the price or value thereof at the time of the taking.2

As regards the claim for damages, the plaintiff is entitled thereto in the form of legal interest on the
price of the land from the time it was taken up to the time that payment is made by the
government.3 In addition, the government should pay for attorney's fees, the amount of which should
be fixed by the trial court after hearing.

WHEREFORE, the decision appealed from is hereby set aside and the case remanded to the
court a quo for the determination of compensation, including attorney's fees, to which the appellant is
entitled as above indicated. No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and
Makasiar JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-15645 January 31, 1964

PAZ P. ARRIETA and VITALIADO ARRIETA, plaintiffs-appellees,

vs.
NATIONAL RICE AND CORN CORPORATION, defendant-appellant,
MANILA UNDERWRITERS INSURANCE CO., INC., defendant-appellee.

Teehankee and Carreon for plaintiffs-appellees.

The Government Corporate Counsel for defendant-appellant.
Isidro A. Vera for defendant-appellee.

REGALA, J.:

This is an appeal of the defendant-appellant NARIC from the decision of the trial court dated
February 20, 1958, awarding to the plaintiffs-appellees the amount of $286,000.00 as damages for
breach of contract and dismissing the counterclaim and third party complaint of the defendant-
appellant NARIC.

In accordance with Section 13 of Republic Act No. 3452, "the National Rice and Corn Administration
(NARIC) is hereby abolished and all its assets, liabilities, functions, powers which are not
inconsistent with the provisions of this Act, and all personnel are transferred "to the Rice and Corn
Administration (RCA).

All references, therefore, to the NARIC in this decision must accordingly be adjusted and read as
RCA pursuant to the aforementioned law.
On May 19, 1952, plaintiff-appellee participated in the public bidding called by the NARIC for the
supply of 20,000 metric tons of Burmese rice. As her bid of $203.00 per metric ton was the lowest,
she was awarded the contract for the same. Accordingly, on July 1, 1952, plaintiff-appellee Paz P.
Arrieta and the appellant corporation entered into a Contract of Sale of Rice, under the terms of
which the former obligated herself to deliver to the latter 20,000 metric tons of Burmess Rice at
$203.00 per metric ton, CIF Manila. In turn, the defendant corporation committed itself to pay for the
imported rice "by means of an irrevocable, confirmed and assignable letter of credit in U.S. currency
in favor of the plaintiff-appellee and/or supplier in Burma, immediately." Despite the commitment to
pay immediately "by means of an irrevocable, confirmed and assignable Letter of Credit," however, it
was only on July 30, 1952, or a full month from the execution of the contract, that the defendant
corporation, thru its general manager, took the first to open a letter of credit by forwarding to the
Philippine National Bank its Application for Commercial Letter Credit. The application was
accompanied by a transmittal letter, the relevant paragraphs of which read:

In view of the fact that we do not have sufficient deposit with your institution with which to
cover the amount required to be deposited as a condition for the opening of letters of credit,
we will appreciate it if this application could be considered special case.

We understand that our supplier, Mrs. Paz P. Arrieta, has a deadline to meet which is August
4, 1952, and in order to comply therewith, it is imperative that the L/C be opened prior to that
date. We would therefore request your full cooperation on this matter.

On the same day, July 30, 1952, Mrs. Paz P. Arrieta thru counsel, advised the appellant corporation
of the extreme necessity for the immediate opening of the letter credit since she had by then made a
tender to her supplier in Rangoon, Burma, "equivalent to 5% of the F.O.B. price of 20,000 tons at
$180.70 and in compliance with the regulations in Rangoon this 5% will be confiscated if the
required letter of credit is not received by them before August 4, 1952."

On August 4, 1952, the Philippine National Bank informed the appellant corporation that its
application, "for a letter of credit for $3,614,000.00 in favor of Thiri Setkya has been approved by the
Board of Directors with the condition that marginal cash deposit be paid and that drafts are to be
paid upon presentment." (Exh. J-pl.; Exh. 10-def., p. 19, Folder of Exhibits). Furthermore, the Bank
represented that it "will hold your application in abeyance pending compliance with the above stated
requirement."

As it turned out, however, the appellant corporation not in any financial position to meet the
condition. As matter of fact, in a letter dated August 2, 1952, the NARIC bluntly confessed to the
appellee its dilemma: "In this connection, please be advised that our application for opening of the
letter of credit has been presented to the bank since July 30th but the latter requires that we first
deposit 50% of the value of the letter amounting to aproximately $3,614,000.00 which we are not in
a position to meet." (Emphasis supplied. Exh. 9-Def.; Exh. 1-Pe., p. 18, Folder of Exhibits)

Consequently, the credit instrument applied for was opened only on September 8, 1952 "in favor of
Thiri Setkya, Rangoon, Burma, and/or assignee for $3,614,000.00," (which is more than two months
from the execution of the contract) the party named by the appellee as beneficiary of the letter of
credit.
1äwphï1.ñët

As a result of the delay, the allocation of appellee's supplier in Rangoon was cancelled and the 5%
deposit, amounting to 524,000 kyats or approximately P200,000.00 was forfeited. In this connection,
it must be made of record that although the Burmese authorities had set August 4, 1952, as the
deadline for the remittance of the required letter of credit, the cancellation of the allocation and the
confiscation of the 5% deposit were not effected until August 20, 1952, or, a full half month after the
expiration of the deadline. And yet, even with the 15-day grace, appellant corporation was unable to
make good its commitment to open the disputed letter of credit.

The appellee endeavored, but failed, to restore the cancelled Burmese rice allocation. When the
futility of reinstating the same became apparent, she offered to substitute Thailand rice instead to the
defendant NARIC, communicating at the same time that the offer was "a solution which should be
beneficial to the NARIC and to us at the same time." (Exh. X-Pe., Exh. 25—Def., p. 38, Folder of
Exhibits). This offer for substitution, however, was rejected by the appellant in a resolution dated
November 15, 1952.

On the foregoing, the appellee sent a letter to the appellant, demanding compensation for the
damages caused her in the sum of $286,000.00, U.S. currency, representing unrealized profit. The
demand having been rejected she instituted this case now on appeal.

At the instance of the NARIC, a counterclaim was filed and the Manila Underwriters Insurance
Company was brought to the suit as a third party defendant to hold it liable on the performance bond
it executed in favor of the plaintiff-appellee.

We find for the appellee.

It is clear upon the records that the sole and principal reason for the cancellation of the allocation
contracted by the appellee herein in Rangoon, Burma, was the failure of the letter of credit to be
opened with the contemplated period. This failure must, therefore, be taken as the immediate cause
for the consequent damage which resulted. As it is then, the disposition of this case depends on a
determination of who was responsible for such failure. Stated differently, the issue is whether
appellant's failure to open immediately the letter of credit in dispute amounted to a breach of the
contract of July 1, 1952 for which it may be held liable in damages.

Appellant corporation disclaims responsibility for the delay in the opening of the letter of credit. On
the contrary, it insists that the fault lies with the appellee. Appellant contends that the disputed
negotiable instrument was not promptly secured because the appellee , failed to seasonably furnish
data necessary and required for opening the same, namely, "(1) the amount of the letter of credit, (2)
the person, company or corporation in whose favor it is to be opened, and (3) the place and bank
where it may be negotiated." Appellant would have this Court believe, therefore, that had these
informations been forthwith furnished it, there would have been no delay in securing the instrument.

Appellant's explanation has neither force nor merit. In the first place, the explanation reaches into an
area of the proceedings into which We are not at liberty to encroach. The explanation refers to a
question of fact. Nothing in the record suggests any arbitrary or abusive conduct on the part of the
trial judge in the formulation of the ruling. His conclusion on the matter is sufficiently borne out by the
evidence presented. We are denied, therefore, the prerogative to disturb that finding, consonant to
the time-honored tradition of this Tribunal to hold trial judges better situated to make conclusions on
questions of fact. For the record, We quote hereunder the lower court's ruling on the point:

The defense that the delay, if any in opening the letter of credit was due to the failure of
plaintiff to name the supplier, the amount and the bank is not tenable. Plaintiff stated in Court
that these facts were known to defendant even before the contract was executed because
these facts were necessarily revealed to the defendant before she could qualify as a bidder.
She stated too that she had given the necessary data immediately after the execution of Exh.
"A" (the contract of July 1, 1952) to Mr. GABRIEL BELMONTE, General Manager of the
NARIC, both orally and in writing and that she also pressed for the opening of the letter of
credit on these occasions. These statements have not been controverted and defendant
 NARIC, notwithstanding its previous intention to do so, failed to present Mr. Belmonte to
testify or refute this. ...

Secondly, from the correspondence and communications which form part of the record of this case,
it is clear that what singularly delayed the opening of the stipulated letter of credit and which, in turn,
caused the cancellation of the allocation in Burma, was the inability of the appellant corporation to
meet the condition importation by the Bank for granting the same. We do not think the appellant
corporation can refute the fact that had it been able to put up the 50% marginal cash deposit
demanded by the bank, then the letter of credit would have been approved, opened and released as
early as August 4, 1952. The letter of the Philippine National Bank to the NARIC was plain and
explicit that as of the said date, appellant's "application for a letter of credit ... has been approved by
the Board of Directors with the condition that 50% marginal cash deposit be paid and that drafts are
to be paid upon presentment." (Emphasis supplied)

The liability of the appellant, however, stems not alone from this failure or inability to satisfy the
requirements of the bank. Its culpability arises from its willful and deliberate assumption of
contractual obligations even as it was well aware of its financial incapacity to undertake the
prestation. We base this judgment upon the letter which accompanied the application filed by the
appellant with the bank, a part of which letter was quoted earlier in this decision. In the said
accompanying correspondence, appellant admitted and owned that it did "not have sufficient deposit
with your institution (the PNB) with which to cover the amount required to be deposited as a
condition for the opening of letters of credit. ... .

A number of logical inferences may be drawn from the aforementioned admission. First, that the
appellant knew the bank requirements for opening letters of credit; second, that appellant also knew
it could not meet those requirement. When, therefore, despite this awareness that was financially
incompetent to open a letter of credit immediately, appellant agreed in paragraph 8 of the contract to
pay immediately "by means of an irrevocable, confirm and assignable letter of credit," it must be
similarly held to have bound itself to answer for all and every consequences that would result from
the representation. aptly observed by the trial court:

... Having called for bids for the importation of rice involving millions, $4,260,000.00 to be
exact, it should have a certained its ability and capacity to comply with the inevitably
requirements in cash to pay for such importation. Having announced the bid, it must be
deemed to have impliedly assured suppliers of its capacity and facility to finance the
importation within the required period, especially since it had imposed the supplier the 90-
day period within which the shipment of the rice must be brought into the Philippines. Having
entered in the contract, it should have taken steps immediately to arrange for the letter of
credit for the large amount involved and inquired into the possibility of its issuance.

In relation to the aforequoted observation of the trial court, We would like to make reference also to
Article 11 of the Civil Code which provides:

Those who in the performance of their obligation are guilty of fraud, negligence, or delay, and
those who in any manner contravene the tenor thereof, are liable in damages.

Under this provision, not only debtors guilty of fraud, negligence or default in the performance of
obligations a decreed liable; in general, every debtor who fails in performance of his obligations is
bound to indemnify for the losses and damages caused thereby (De la Cruz Seminary of Manila, 18
Phil. 330; Municipality of Moncada v. Cajuigan, 21 Phil. 184; De la Cavada v. Diaz, 37 Phil. 982;
Maluenda & Co. v. Enriquez, 46 Phil. 916; Pasumil v. Chong, 49 Phil. 1003; Pando v. Gimenez, 54
Phil. 459; Acme Films v. Theaters Supply, 63 Phil. 657). The phrase "any manner contravene the
tenor" of the obligation includes any illicit act which impairs the strict and faithful fulfillment of the
obligation or every kind or defective performance. (IV Tolentino, Civil Code of the Philippines, citing
authorities, p. 103.)

The NARIC would also have this Court hold that the subsequent offer to substitute Thailand rice for
the originally contracted Burmese rice amounted to a waiver by the appellee of whatever rights she
might have derived from the breach of the contract. We disagree. Waivers are not presumed, but
must be clearly and convincingly shown, either by express stipulation or acts admitting no other
reasonable explanation. (Ramirez v. Court of Appeals, 52 O.G. 779.) In the case at bar, no such
intent to waive has been established.

We have carefully examined and studied the oral and documentary evidence presented in this case
and upon which the lower court based its award. Under the contract, the NARIC bound itself to buy
20,000 metric tons of Burmese rice at "$203.00 U.S. Dollars per metric ton, all net shipped weight,
and all in U.S. currency, C.I.F. Manila ..." On the other hand, documentary and other evidence
establish with equal certainty that the plaintiff-appellee was able to secure the contracted commodity
at the cost price of $180.70 per metric ton from her supplier in Burma. Considering freights,
insurance and charges incident to its shipment here and the forfeiture of the 5% deposit, the award
granted by the lower court is fair and equitable. For a clearer view of the equity of the damages
awarded, We reproduce below the testimony of the appellee, adequately supported by the evidence
and record:

Q. Will you please tell the court, how much is the damage you suffered?

A. Because the selling price of my rice is $203.00 per metric ton, and the cost price of my
rice is $180.00 We had to pay also $6.25 for shipping and about $164 for insurance. So
adding the cost of the rice, the freight, the insurance, the total would be about $187.99 that
would be $15.01 gross profit per metric ton, multiply by 20,000 equals $300,200, that is my
supposed profit if I went through the contract.

The above testimony of the plaintiff was a general approximation of the actual figures involved in the
transaction. A precise and more exact demonstration of the equity of the award herein is provided by
Exhibit HH of the plaintiff and Exhibit 34 of the defendant, hereunder quoted so far as germane.

It is equally of record now that as shown in her request dated July 29, 1959, and other
communications subsequent thereto for the opening by your corporation of the required letter
of credit, Mrs. Arrieta was supposed to pay her supplier in Burma at the rate of One Hundred
Eighty Dollars and Seventy Cents ($180.70) in U.S. Currency, per ton plus Eight Dollars
($8.00) in the same currency per ton for shipping and other handling expenses, so that she is
already assured of a net profit of Fourteen Dollars and Thirty Cents ($14.30), U.S., Currency,
per ton or a total of Two Hundred and Eighty Six Thousand Dollars ($286,000.00), U.S.
Currency, in the aforesaid transaction. ...

Lastly, herein appellant filed a counterclaim asserting that it has suffered, likewise by way of
unrealized profit damages in the total sum of $406,000.00 from the failure of the projected contract
to materialize. This counterclaim was supported by a cost study made and submitted by the
appellant itself and wherein it was illustrated how indeed had the importation pushed thru, NARIC
would have realized in profit the amount asserted in the counterclaim. And yet, the said amount of
P406,000.00 was realizable by appellant despite a number of expenses which the appellee under
the contract, did not have to incur. Thus, under the cost study submitted by the appellant, banking
and unloading charges were to be shouldered by it, including an Import License Fee of 2% and
superintendence fee of $0.25 per metric ton. If the NARIC stood to profit over P400 000.00 from the
disputed transaction inspite of the extra expenditures from which the herein appellee was exempt,
we are convicted of the fairness of the judgment presently under appeal.

In the premises, however, a minor modification must be effected in the dispositive portion of the
decision appeal from insofar as it expresses the amount of damages in U.S. currency and not in
Philippine Peso. Republic Act 529 specifically requires the discharge of obligations only "in any coin
or currency which at the time of payment is legal tender for public and private debts." In view of that
law, therefore, the award should be converted into and expressed in Philippine Peso.

This brings us to a consideration of what rate of exchange should apply in the conversion here
decreed. Should it be at the time of the breach, at the time the obligation was incurred or at the rate
of exchange prevailing on the promulgation of this decision.

In the case of Engel v. Velasco & Co., 47 Phil. 115, We ruled that in an action for recovery of
damages for breach of contract, even if the obligation assumed by the defendant was to pay the
plaintiff a sum of money expressed in American currency, the indemnity to be allowed should be
expressed in Philippine currency at the rate of exchange at the time of the judgment rather than at
the rate of exchange prevailing on the date of defendant's breach. This ruling, however, can neither
be applied nor extended to the case at bar for the same was laid down when there was no law
against stipulating foreign currencies in Philippine contracts. But now we have Republic Act No. 529
which expressly declares such stipulations as contrary to public policy, void and of no effect. And, as
We already pronounced in the case of Eastboard Navigation, Ltd. v. Juan Ysmael & Co., Inc., G.R.
No. L-9090, September 10, 1957, if there is any agreement to pay an obligation in a currency other
than Philippine legal tender, the same is null and void as contrary to public policy (Republic Act 529),
and the most that could be demanded is to pay said obligation in Philippine currency "to be
measured in the prevailing rate of exchange at the time the obligation was incurred (Sec. 1, idem)."

UPON ALL THE FOREGOING, the decision appealed from is hereby affirmed, with the sole
modification that the award should be converted into the Philippine peso at the rate of exchange
prevailing at the time the obligation was incurred or on July 1, 1952 when the contract was executed.
The appellee insurance company, in the light of this judgment, is relieved of any liability under this
suit. No pronouncement as to costs.

Bengzon, C.J., Padilla, Concepcion, Paredes, Dizon and Makalintal, JJ., concur.
Barrera, J., took no part.
Reyes, J.B.L., J., reserves his vote.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-29993 October 23, 1978

LAUDENCIO TORIO, GUILLERMO EVANGELISTA, MANUEL DE GUZMAN, ALFONSO R.

MAGSANOC, JESUS MACARANAS, MAXIMO MANANGAN, FIDEL MONTEMAYOR, MELCHOR
VIRAY, RAMON TULAGAN, all Members of the Municipal Council of Malasiqui in 1959,
Malasiqui, Pangasinan, petitioners,
vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO,
NORMA, VIRGINIA, REMEDIOS and ROBERTO, all surnamed FONTANILLA, and THE
HONORABLE COURT OF APPEALS, respondents.

G.R. No. L-30183 October 23, 1978

MUNICIPALITY OF MALASIQUI, petitioner,

vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO,
NORMA, VIRGINIA, REMEDIOS and ROBERTO, all surnamed FONTANILLA, and the
Honorable COURT OF APPEALS, respondents.

Julian M. Armas, Assistant Provincial Fiscal for petitioners.

Isidro L. Padilla for respondents.

MUÑOZ PALMA, J.:

These Petitions for review present the issue of whether or not the celebration of a town fiesta
authorized by a municipal council under Sec. 2282 of the Municipal Law as embodied in the Revised
Administrative Code is a governmental or a corporate or proprietary function of the municipality.

A resolution of that issue will lead to another, viz the civil liability for damages of the Municipality of
Malasiqui, and the members of the Municipal Council of Malasiqui, province of Pangasinan, for a
death which occurred during the celebration of the town fiesta on January 22, 1959, and which was
attributed to the negligence of the municipality and its council members.

The following facts are not in dispute:

On October 21, 1958, the Municipal Council of Malasiqui, Pangasinan, passed Resolution No. 159
whereby "it resolved to manage the 1959 Malasiqui town fiesta celebration on January 21, 22, and
23, 1959." Resolution No. 182 was also passed creating the "1959 Malasiqui 'Town Fiesta Executive
Committee" which in turn organized a sub-committee on entertainment and stage, with Jose
Macaraeg as Chairman. the council appropriated the amount of P100.00 for the construction of 2
stages, one for the "zarzuela" and another for the cancionan Jose Macaraeg supervised the
construction of the stage and as constructed the stage for the "zarzuela" was "5-½ meters by 8
meters in size, had a wooden floor high at the rear and was supported by 24 bamboo posts — 4 in a
row in front, 4 in the rear and 5 on each side — with bamboo braces." 1

The "zarzuela" entitled "Midas Extravaganza" was donated by an association of Malasiqui

employees of the Manila Railroad Company in Caloocan, Rizal. The troupe arrived in the evening of
January 22 for the performance and one of the members of the group was Vicente Fontanilla. The
program started at about 10:15 o'clock that evening with some speeches, and many persons went
up the stage. The "zarzuela" then began but before the dramatic part of the play was reached, the
stage collapsed and Vicente Fontanilla who was at the rear of the stage was pinned underneath.
Fontanilia was taken to tile San Carlos General Hospital where he died in the afternoon of the
following day.
The heirs of Vicente Fontanilia filed a complaint with the Court of First Instance of Manila on
September 11, 1959 to recover damages. Named party-defendants were the Municipality of
Malasiqui, the Municipal Council of Malasiqui and all the individual members of the Municipal
Council in 1959.

Answering the complaint defendant municipality invoked inter alia the principal defense that as a
legally and duly organized public corporation it performs sovereign functions and the holding of a
town fiesta was an exercise of its governmental functions from which no liability can arise to answer
for the negligence of any of its agents.

The defendant councilors inturn maintained that they merely acted as agents of the municipality in
carrying out the municipal ordinance providing for the management of the town fiesta celebration
and as such they are likewise not liable for damages as the undertaking was not one for profit;
furthermore, they had exercised due care and diligence in implementing the municipal ordinance. 2

After trial, the Presiding Judge, Hon. Gregorio T. Lantin narrowed the issue to whether or not the
defendants exercised due diligence 'm the construction of the stage. From his findings he arrived at
the conclusion that the Executive Committee appointed by the municipal council had exercised due
diligence and care like a good father of the family in selecting a competent man to construct a stage
strong enough for the occasion and that if it collapsed that was due to forces beyond the control of
the committee on entertainment, consequently, the defendants were not liable for damages for the
death of Vicente Fontanilla. The complaint was accordingly dismissed in a decision dated July 10,
1962. 3

The Fontanillas appealed to the Court of Appeals. In a decision Promulgated on October 31, 1968,
the Court of Appeals through its Fourth Division composed at the time of Justices Salvador V.
Esguerra, Nicasio A. Yatco and Eulogio S. Serrano reversed the trial court's decision and ordered all
the defendants-appellees to pay jointly and severally the heirs of Vicente Fontanilla the sums of
P12,000.00 by way of moral and actual damages: P1200.00 its attorney's fees; and the costs. 4

The case is now before Us on various assignments of errors all of which center on the proposition
stated at the sentence of this Opinion and which We repeat:

Is the celebration of a town fiesta an undertaking in the excercise of a municipality's governmental or

public function or is it or a private or proprietary character?

1. Under Philippine laws municipalities are political bodies corporate and as such ag endowed with
the faculties of municipal corporations to be exercised by and through their respective municipal
governments in conformity with law, and in their proper corporate name, they may inter alia sue and
be sued, and contract and be contracted with. 5

The powers of a municipality are twofold in character public, governmental or political on the one
hand, and corporate, private, or proprietary on the other. Governmental powers are those exercised
by the corporation in administering the powers of the state and promoting the public welfare and they
include the legislative, judicial public, and political Municipal powers on the other hand are exercised
for the special benefit and advantage of the community and include those which are ministerial
private and corporate. 6

As to when a certain activity is governmental and when proprietary or private, that is generally a
difficult matter to determine. The evolution of the municipal law in American Jurisprudence, for
instance, has shown that; none of the tests which have evolved and are stated in textbooks have set
down a conclusive principle or rule, so that each case will have to be determined on the basis of
attending circumstances.

In McQuillin on Municipal Corporations, the rule is stated thus: "A municipal corporation proper has
... a public character as regards the state at large insofar as it is its agent in government, and private
(so-called) insofar as it is to promote local necessities and conveniences for its own community. 7

Another statement of the test is given in City of Kokomo v. Loy, decided by the Supreme Court of
Indiana in 1916, thus:

Municipal corporations exist in a dual capacity, and their functions are two fold. In
one they exercise the right springing from sovereignty, and while in the performance
of the duties pertaining thereto, their acts are political and governmental Their
officers and agents in such capacity, though elected or appointed by the are
nevertheless public functionaries performing a public service, and as such they are
officers, agents, and servants of the state. In the other capacity the municipalities
exercise a private. proprietary or corporate right, arising from their existence as legal
persons and not as public agencies. Their officers and agents in the performance of
such functions act in behalf of the municipalities in their corporate or in. individual
capacity, and not for the state or sovereign power. (112 N. E 994-995)

In the early Philippine case of Mendoza v. de Leon 1916, the Supreme Court, through Justice Grant
T. Trent, relying mainly on American Jurisprudence classified certain activities of the municipality as
governmental, e.g.: regulations against fire, disease, preservation of public peace, maintenance of
municipal prisons, establishment of schools, post-offices, etc. while the following are corporate or
proprietary in character, viz: municipal waterwork, slaughter houses, markets, stables, bathing
establishments, wharves, ferries, and fisheries. 8 Maintenance of parks, golf courses, cemeteries and
airports among others, are also recognized as municipal or city activities of a proprietary character. 9

2. This distinction of powers becomes important for purposes of determining the liability of the
municipality for the acts of its agents which result in an injury to third persons.

If the injury is caused in the course of the performance of a governmental function or duty no
recovery, as a rule, can be. had from the municipality unless there is an existing statute on the
matter,10 nor from its officers, so long as they performed their duties honestly and in good faith or that
they did not act wantonly and maliciously. 11 In Palafox, et al., v. Province of Ilocos Norte, et
al., 1958, a truck driver employed by the provincial government of Ilocos Norte ran over Proceto
Palafox in the course of his work at the construction of a road. The Supreme Court in affirming the
trial court's dismissal of the complaint for damages held that the province could not be made liable
because its employee was in the performance of a governmental function — the construction and
maintenance of roads — and however tragic and deplorable it may be, the death of Palafox imposed
on the province no duty to pay monetary consideration. 12

With respect to proprietary functions, the settled rule is that a municipal corporation can be held
liable to third persons ex contract 13 or ex delicto. 14

Municipal corporations are subject to be sued upon contracts and in tort. ...

xxx xxx xxx

The rule of law is a general one, that the superior or employer must answer civilly for
the negligence or want of skill of its agent or servant in the course or fine of his
 employment, by which another, who is free from contributory fault, is injured.
Municipal corporations under the conditions herein stated, fall within the operation of
this rule of law, and are liable, accordingly, to civil actions for damages when the
requisite elements of liability co-exist. ... (Dillon on Municipal Corporations, 5th ed.
Sec. 1610,1647, cited in Mendoza v. de Leon, supra. 514)

3. Coming to the cam before Us, and applying the general tests given above, We hold that the ho of
the town fiesta in 1959 by the municipality of Malsiqui Pangasinan was an exercise of a private or
proprietary function of the municipality.

Section 2282 of the Chatter on Municipal Law of the Revised Administrative Code provides:

Section 2282. Celebration of fiesta. — fiesta may be held in each municipality not
oftener than once a year upon a date fixed by the municipal council A fiesta s not be
held upon any other date than that lawfully fixed therefor, except when, for weighty
reasons, such as typhoons, foundations, earthquakes, epidemics, or other public
ties, the fiesta cannot be hold in the date fixed in which case it may be held at a later
date in the same year, by resolution of the council.

This provision simply gives authority to the municipality to accelebrate a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta even if the purpose is to commemorate a
religious or historical event of the town is in essence an act for the special benefit of the community
and not for the general welfare of the public performed in pursuance of a policy of the state. The
mere fact that the celebration, as claimed was not to secure profit or gain but merely to provide
entertainment to the town inhabitants is not a conclusive test. For instance, the maintenance of
parks is not a source of income for the nonetheless it is private undertaking as distinguished from
the maintenance of public schools, jails, and the like which are for public service.

As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an
undertaking or function of a municipality; the surrounding circumstances of a particular case are to
be considered and will be decisive. The basic element, however beneficial to the public the
undertaking may be, is that it is governmental in essence, otherwise. the function becomes private or
proprietary in character. Easily, no overnmental or public policy of the state is involved in the
celebration of a town fiesta. 15

4. It follows that under the doctrine of respondent superior, petitioner-municipality is to be held liable
for damages for the death of Vicente Fontanilia if that was at- tributable to the negligence of the
municipality's officers, employees, or agents.

Art. 2176, Civil Code: Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. . .

Art. 2180, Civil Code: The obligation imposed by article 2176 is demandable not only
for one's own acts or omission, but also for those of persons for whom one is
responsible. . .

On this point, the Court of Appeals found and held that there was negligence.

The trial court gave credence to the testimony of Angel Novado, a witness of the defendants (now
petitioners), that a member of the "extravaganza troupe removed two principal braces located on the
front portion of the stage and u them to hang the screen or "telon", and that when many people went
up the stage the latter collapsed. This testimony was not believed however by respondent appellate
court, and rightly so. According to said defendants, those two braces were "mother" or "principal"
braces located semi-diagonally from the front ends of the stage to the front posts of the ticket booth
located at the rear of the stage and were fastened with a bamboo twine. 16 That being the case, it
becomes incredible that any person in his right mind would remove those principal braces and leave
the front portion of the stage practically unsuported Moreover, if that did happen, there was indeed
negligence as there was lack of suspension over the use of the stage to prevent such an
occurrence.

At any rate, the guitarist who was pointed to by Novado as the person who removed the two bamboo
braces denied having done go. The Court of Appeals said "Amor by himself alone could not have
removed the two braces which must be about ten meters long and fastened them on top of the stags
for the curtain. The stage was only five and a half meters wide. Surely, it, would be impractical and
unwieldy to use a ten meter bamboo pole, much more two poles for the stage curtain. 17

The appellate court also found that the stage was not strong enough considering that only P100.00
was appropriate for the construction of two stages and while the floor of the "zarzuela" stage was of
wooden planks, the Post and braces used were of bamboo material We likewise observe that
although the stage was described by the Petitioners as being supported by "24" posts, nevertheless
there were only 4 in front, 4 at the rear, and 5 on each side. Where were the rest?

The Court of Appeals thus concluded

The court a quo itself attributed the collapse of the stage to the great number of
onlookers who mounted the stage. The municipality and/or its agents had the
necessary means within its command to prevent such an occurrence. Having filed to
take the necessary steps to maintain the safety of the stage for the use of the
participants in the stage presentation prepared in connection with the celebration of
the town fiesta, particularly, in preventing non participants or spectators from
mounting and accumulating on the stage which was not constructed to meet the
additional weight- the defendant-appellees were negligent and are liable for the
death of Vicente Fontanilla . (pp. 30-31, rollo, L-29993)

The findings of the respondent appellate court that the facts as presented to it establish negligence
as a matter of law and that the Municipality failed to exercise the due diligence of a good father of
the family, will not disturbed by Us in the absence of a clear showing of an abuse of discretion or a
gross misapprehension of facts." 18

Liability rests on negligence which is "the want of such care as a person of ordinary prudence would
exercise under the circumstances of the case." 19

Thus, private respondents argue that the "Midas Extravaganza" which was to be performed during
the town fiesta was a "donation" offered by an association of Malasiqui employees of the Manila
Railroad Co. in Caloocan, and that when the Municipality of Malasiqui accepted the donation of
services and constructed precisely a "zarzuela stage" for the purpose, the participants in the stage
show had the right to expect that the Municipality through its "Committee on entertainment and
stage" would build or put up a stage or platform strong enough to sustain the weight or burden of the
performance and take the necessary measures to insure the personal safety of the
participants. 20 We agree.

Quite relevant to that argument is the American case of Sanders v. City of Long Beach, 1942, which
was an action against the city for injuries sustained from a fall when plaintiff was descending the
steps of the city auditorium. The city was conducting a "Know your City Week" and one of the
features was the showing of a motion picture in the city auditorium to which the general public was
invited and plaintiff Sanders was one of those who attended. In sustaining the award for Damages in
favor of plaintiff, the District Court of Appeal, Second district, California, held inter alia that the "Know
your City Week" was a "proprietary activity" and not a "governmental one" of the city, that defendant
owed to plaintiff, an invitee the duty of exercising ordinary care for her safety, and plaintiff was
entitled to assume that she would not be exposed to a danger (which in this case consisted of lack of
sufficient illumination of the premises) that would come to her through a violation of defendant duty. 21

We can say that the deceased Vicente Fontanilla was similarly situated as Sander The Municipality
of Malasiqui resolved to celebrate the town fiesta in January of 1959; it created a committee in
charge of the entertainment and stage; an association of Malasiqui residents responded to the call
for the festivities and volunteered to present a stage show; Vicente Fontanilla was one of the
participants who like Sanders had the right to expect that he would be exposed to danger on that
occasion.

Lastly, petitioner or appellant Municipality cannot evade ability and/or liability under the c that it was
Jose Macaraeg who constructed the stage. The municipality acting through its municipal council
appointed Macaraeg as chairman of the sub-committee on entertainment and in charge of the
construction of the "zarzuela" stage. Macaraeg acted merely as an agent of the Municipality. Under
the doctrine of respondent superior mentioned earlier, petitioner is responsible or liable for the
negligence of its agent acting within his assigned tasks. 22

... when it is sought to render a municipal corporation liable for the act of servants or agents, a
cardinal inquiry is, whether they are the servants or agents of the corporation. If the corporation
appoints or elects them, can control them in the discharge of their duties, can continue or remove
the can hold them responsible for the manner in which they discharge their trust, and if those duties
relate to the exercise of corporate powers, and are for the benefit of the corporation in its local or
special interest, they may justly be regarded as its agents or servants, and the maxim of respondent
superior applies." ... (Dillon on Municipal Corporations, 5th Ed., Vol IV, p. 2879)

5. The remaining question to be resolved centers on the liability of the municipal councilors who
enacted the ordinance and created the fiesta committee.

The Court of Appeals held the councilors jointly and solidarity liable with the municipality for
damages under Article 27 of the Civil Code which provides that d any person suffering ing material
or moral loss because a public servant or employee refuses or neglects, without just cause to
perform his official duty may file an action for damages and other relief at the latter. 23

In their Petition for review the municipal councilors allege that the Court of Appeals erred in ruling
that the holding of a town fiesta is not a governmental function and that there was negligence on
their part for not maintaining and supervising the safe use of the stage, in applying Article 27 of the
Civil Code against them and in not holding Jose Macaraeg liable for the collapse of the stage and
the consequent death of Vicente Fontanilla. 24

We agree with petitioners that the Court of Appeals erred in applying Article 27 of the Civil Code
against the for this particular article covers a case of nonfeasance or non-performance by a public
officer of his official duty; it does not apply to a case of negligence or misfeasance in carrying out an
official duty.

If We are led to set aside the decision of the Court of Appeals insofar as these petitioners are
concerned, it is because of a plain error committed by respondent court which however is not
invoked in petitioners' brief.
In Miguel v. The Court of appeal. et al., the Court, through Justice, now Chief Justice, Fred Ruiz
Castro, held that the Supreme Court is vested with ample authority to review matters not assigned
as errors in an appeal if it finds that their consideration and resolution are indispensable or
necessary in arriving at a just decision in a given case, and that tills is author under Sec. 7, Rule 51
of the Rules of Court. 25 We believe that this pronouncement can well be applied in the instant case.

The Court of Appeals in its decision now under review held that the celebration of a town fiesta by
the Municipality of Malasiqui was not a governmental function. We upheld that ruling. The legal
consequence thereof is that the Municipality stands on the same footing as an ordinary private
corporation with the municipal council acting as its board of directors. It is an elementary principle
that a corporation has a personality, separate and distinct from its officers, directors, or persons
composing it 26 and the latter are not as a rule co-responsible in an action for damages for tort or
negligence culpa aquilla committed by the corporation's employees or agents unless there is a
showing of bad faith or gross or wanton negligence on their part. 27

xxx xxx xxx

The ordinary doctrine is that a director, merely by reason of his office, is not
personally Stable for the torts of his corporation; he Must be shown to have
personally voted for or otherwise participated in them ... Fletcher Encyclopedia
Corporations, Vol 3A Chapt 11, p. 207)

Officers of a corporation 'are not held liable for the negligence of the corporation
merely because of their official relation to it, but because of some wrongful or
negligent act by such officer amounting to a breach of duty which resulted in an injury
... To make an officer of a corporation liable for the negligence of the corporation
there must have been upon his part such a breach of duty as contributed to, or
helped to bring about, the injury; that is to say, he must be a participant in the
wrongful act. ... (pp. 207-208, Ibid.)

xxx xxx xxx

Directors who merely employ one to give a fireworks Ambition on the corporate are
not personally liable for the negligent acts of the exhibitor. (p. 211, Ibid.)

On these people We absolve Use municipal councilors from any liability for the death of Vicente
Fontanilla. The records do not show that said petitioners directly participated in the defective
construction of the "zarzuela" stage or that they personally permitted spectators to go up the
platform.

6. One last point We have to resolve is on the award of attorney's fees by respondent court.
Petitioner-municipality assails the award.

Under paragraph 11, Art. 2208 of the Civil Code attorney's fees and expenses of litigation may be
granted when the court deems it just and equitable. In this case of Vicente Fontanilla, although
respondent appellate court failed to state the grounds for awarding attorney's fees, the records show
however that attempts were made by plaintiffs, now private respondents, to secure an extrajudicial
compensation from the municipality: that the latter gave prorases and assurances of assistance but
failed to comply; and it was only eight month after the incident that the bereaved family of Vicente
Fontanilla was compelled to seek relief from the courts to ventilate what was believed to be a just
cause. 28
We hold, therefore, that there is no error committed in the grant of attorney's fees which after all is a
matter of judicial discretion. The amount of P1,200.00 is fair and reasonable.

PREMISES CONSIDERED, We AFFIRM in toto the decision of the Court of Appeals insofar as the
Municipality of Malasiqui is concerned (L-30183), and We absolve the municipal councilors from
liability and SET ASIDE the judgment against them (L-9993).

Without pronouncement as to costs.

SO ORDERED,

Teehankee (Chairman), Makasiar, Fernandez, and Guerrero, JJ., concur.

Bindoy

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-34665 August 28, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
DONATO BINDOY, defendant-appellant.

Florentino Saguin for appellant.

Attorney-General Jaranilla for appellee.

VILLAMOR, J.:

The appellant was sentenced by the Court of First Instance of Occidental Misamis to the penalty of
twelve years and one day of reclusion temporal, with the accessories of law, to indemnify the heirs of
the deceased in the amount of P1,000, and to pay the costs. The crime charged against the accused
is homicide, according to the following information:
 That on or about the 6th of May, 1930, in the barrio of Calunod, municipality of Baliangao,
Province of Occidental Misamis, the accused Donato Bindoy willfully, unlawfully, and
feloniously attacked and with his bolo wounded Emigdio Omamdam, inflicting upon the latter
a serious wound in the chest which caused his instant death, in violation of article 404 of the
Penal Code.

The accused appealed from the judgment of the trial court, and his counsel in this instance contends
that the court erred in finding him guilty beyond a reasonable doubt, and in convicting him of the
crime of homicide.

The record shows that in the afternoon of May 6, 1930, a disturbance arose in a tuba wineshop in
the barrio market of Calunod, municipality of Baliangao, Province of Occidental Misamis, started by
some of the tuba drinkers. There were Faustino Pacas (alias Agaton), and his wife called Tibay. One
Donato Bindoy, who was also there, offered some tuba to Pacas' wife; and as she refused to drink
having already done so, Bindoy threatened to injure her if she did not accept. There ensued an
interchange of words between Tibay and Bindoy, and Pacas stepped in to defend his wife,
attempting to take away from Bindoy the bolo he carried. This occasioned a disturbance which
attracted the attention of Emigdio Omamdam, who, with his family, lived near the market. Emigdio
left his house to see what was happening, while Bindoy and Pacas were struggling for the bolo. In
the course of this struggle, Bindoy succeeded in disengaging himself from Pacas, wrenching the
bolo from the latter's hand towards the left behind the accused, with such violence that the point of
the bolo reached Emigdio Omamdam's chest, who was then behind Bindoy.

There is no evidence that Emigdio took part in the fight between Bindoy and Pacas. Neither is there
any indication that the accused was aware of Emigdio Omamdam's presence in the place, for,
according to the testimony of the witnesses, the latter passed behind the combatants when he left
his house to satisfy his curiosity. There was no disagreement or ill feeling between Bindoy and
Omamdam, on the contrary, it appears they were nephew and uncle, respectively, and were on good
terms with each other. Bindoy did not try to wound Pacas, and instead of wounding him, he hit
Omamdam; he was only defending his possession of the bolo, which Pacas was trying to wrench
away from him, and his conduct was perfectly lawful.

The wound which Omamdam received in the chest, judging by the description given by the sanitary
inspector who attended him as he lay dying, tallies with the size of the point of Bindoy's bolo.

There is no doubt that the latter caused the wound which produced Emigdio Omamdam's death, but
the defendant alleges that it was caused accidentally and without malicious intent.

Pacas and the widow of the deceased, Carmen Angot, testified having seen the accused stab
Omamdam with his bolo. Such testimony is not incompatible with that of the accused, to the effect
that he wounded Omamdam by accident. The widow testified that she knew of her husband's wound
being caused by Bindoy from his statement to her before his death.

The testimony of the witnesses for the prosecution tends to show that the accused stabbed
Omamdam in the chest with his bolo on that occasion. The defendant, indeed, in his effort to free
himself of Pacas, who was endeavoring to wrench his bolo from him, hit Omamdam in the chest; but,
as we have stated, there is no evidence to show that he did so deliberately and with the intention of
committing a crime. If, in his struggle with Pacas, the defendant had attempted to wound his
opponent, and instead of doing so, had wounded Omamdam, he would have had to answer for his
act, since whoever willfully commits a felony or a misdemeanor incurs criminal liability, although the
wrongful act done be different from that which he intended. (Art. 1 of the Penal Code.) But, as we
have said, this is not the case.
The witness for the defense, Gaudencio Cenas, corroborates the defendant to the effect that Pacas
and Bindoy were actually struggling for the possession of the bolo, and that when the latter let go,
the former had pulled so violently that it flew towards his left side, at the very moment when Emigdio
Omamdam came up, who was therefore hit in the chest, without Donato's seeing him, because
Emigdio had passed behind him. The same witness adds that he went to see Omamdam at his
home later, and asked him about his wound when he replied: "I think I shall die of this wound." And
then continued: "Please look after my wife when I die: See that she doesn't starve," adding further:
"This wound was an accident. Donato did not aim at me, nor I at him: It was a mishap." The
testimony of this witness was not contradicted by any rebuttal evidence adduced by the fiscal.

We have searched the record in vain for the motive of this kind, which, had it existed, would have
greatly facilitated the solution of this case. And we deem it well to repeat what this court said in
United States vs. Carlos (15 Phil., 47), to wit:

The attention of prosecuting officers, and especially of provincial fiscals, directed to the
importance of definitely ascertaining and proving, when possible, the motives which actuated
the commission of a crime under investigation.

In many criminal cases one of the most important aids in completing the proof of the
commission of the crime by the accused is the introduction of evidence disclosing the
motives which tempted the mind of the guilty person to indulge the criminal act.

In view of the evidence before us, we are of opinion and so hold, that the appellant is entitled to
acquittal according to article 8, No. 8, Penal Code. Wherefore, the judgment appealed from is
reversed, and the accused Donato Bindoy is hereby acquitted with costs de oficio. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Romualdez, Villa-Real, and Imperial, JJ., concur.