GR L 12957; (October, 1918)

EN BANC

G.R. No. L-12957; October 29, 1918

THE UNITED STATES, plaintiffs-appellee,

vs.
PONCIANO NAMIT, defendant-appellant.

Ramon Maza for appellant.
Acting Attorney-General Paredes for appellee.

STREET, J.:

This appeal is brought to this Court to reverse a judgment of the Court of First Instance of the Province of Antique, adjudging the defendant guilty of the crime of murder and sentencing him to cadena perpetua, with the accessories provided by law, and requiring him to indemnify the heirs of the deceased in the sum of P1,000 and to pay the costs.

It appears in evidence that between 6 and 7 o’clock in the evening of February 24, 1917, the deceased Damiano Jordan, and a neighbor, one Fernando Martinez, were talking with each other while standing in the street immediately in front of Jordan’s house in the municipality o Sibalom, Province of Antique. While they were so engaged in conversation they were approached by the accused, Ponciano Namit. The latter was at the time apparently entering upon a duty as guard for the round in the capacity of substitute for a son whose turn fell upon this night.

As Ponciano Namit came up he stopped and asked Fernando Martinez if he was on guard that night. Upon receiving an affirmative reply, he asked Damiano Jordan if he too was on guard, and Damiano replied that he was not as it was not his turn. Ponciano thereupon at once ordered Damiano to go up into his house, and as Damiano did not instantly obey, Ponciano in a few moments repeated the command. Damiano in a few moments repeated the command. Damiano then replied that he was going and suiting his actions to his words, turned to start for his house. As he was turning, Ponciano struck him a blow on the left frontal part of the head with a heavy stick.

The end of this stick was supplied with a hatchet-shaped object, possibly of metal, and the knob of this instrument crushed into the head of Damiano and penetrating into the brain, there momentarily remained. Ponciano by giving the stick a jerk succeeded in freeing it and immediately left the scene of the crime. When he pulled the stick out, Damiano fell to the ground. Damiano’s wife who was sitting in the door of their house only a short distance away, saw what had happened and immediately ran down to her husband and told Fernando to aid her in carrying him to the house, which he did. The injured person lived for about six days and died as a result of the wound. It was shown by an autopsy performed on the body that a hole was made in the skull about as large as a half of peso coin. No motive sufficient to account for this unjustifiable attack was proved, though there is a suggestion in the evidence that Ponciano may have been drinking.

After a careful review of the evidence we see no reason for discrediting the testimony of the two eyewitnesses for the prosecution. We find no material contradiction in their statements made either at the trial of this case or at the time of the commission of the crime. The story told by the wife of the deceased Bonifacia Tubigon, appears to be a simple and truthful narrative. The same may be said with regard to the testimony of Fernando Martinez. Both witness apparently evidence a desire to tell what happened without exaggeration or distortion. Another witness for the prosecution. Aurelio Sildo, testified that on the night in question the accused admitted that he had the misfortune to strike Damiano Jordan.

At the trial the accused did not directly admit having struck the fatal blow to Damiano; but he claimed that on the night in question he was passing the place of this occurrence and was there assaulted by some unknown person with the stick. He says that the and the assailant struggled for the possession of the stick and that finally he, Ponciano, kicked his adversary, who fell down, whereupon Ponciano departed. We consider this story unlikely; and the judge as he did, that the accused is the person who caused the death of Damiano Jordan.

Although the complaint charges alevosia as a qualifying circumstance in the commission of the crime, thus elevating the offense to the degree of murder, and although the judge of the trial court found that this element was present in the commission of the offense, we are not satisfied with his conclusion on this point. It is true the two principal witness testify that the blow was given after Damiano Jordan had turned his bask to the accused; but the blow was truck, evidently with great force, upon the left frontal side of the head of Damiano, and it is manifest that this could have been done only if the accused is a left-handed person, supposing him to be standing behind his victim. There is no evidence, however, that Ponciano Namit is left handed; and inasmuch as right handedness prevails among the great majority, it is to be presumed in the absence of the evidence to the contrary, that the accused is right-handed.

This circumstance raises in our mind a reasonable doubt as to whether the parties may not have been facing each other when the blow was delivered. If such were the case, it would be improper to find that the offense was qualified by alevosia. It must be admitted that the attack was sudden and unexpected to Damiano Jordan, and it would perhaps be possible to found upon this the conclusion that the attack was characterized by surprise in such sense as to constitute alevosia. However, in considering a question of this kind, every case must be judged by its particular facts; and we find nothing in the evidence to show with certainty that the aggressor consciously adopted a mode of attack intended to facilitate the perpetration of a homicide without risk to himself. a more reasonable, though still doubtful, inference would possibly be that he did not in fact intend to kill Damiano at all.

In this connection it is worth while to note that Bonifacia Tubigon declares that immediately after the blow was truck Ponciano Namit exclaimed I have long desired to strike some one and I have done so.” This would seen to indicate, in the absence of proof of other motive, that the accused was moved by a sudden desire to use his stick and that he struck in obedience to this unreasoning impulse, without thinking of the conditions under which he was acting. Upon the whole we incline to the opinion that the fatal blow was the result of a casual encounter under conditions not sufficiently defined to enable us to say that alevosia was certainly present in the case.1awph!l.net

The offense committed is, in our opinion, to be qualified as homicide, under article 404 of the Penal Code , in the estimation of which no generic circumstance either of an aggravating or attenuating nature should be taken into consideration; and the proper penalty is reclusion temporal in its medium degree. The accused should accordingly be sentence to 14 years 8 months and 1 day, reclusion temporal with the accessories prescribed in article 59 of the Penal Code.

Another feature of the case of some importance is presented in connection with an attachment levied upon the property of the accused to secure the satisfaction of the civil liability incident to the commission of the homicide. It appears that while the cause was pending in the Court of First Instance an attorney appeared in the capacity of private prosecutor, representing the widow of the deceased, and presented an affidavit showing that the accused was selling his property in order to elude the payment of any indemnity to which he would be liable in case of conviction. It was accordingly requested that an attachment should be issued against his property. an order was thereupon made by the court upon April 25, 1917, authorizing an attachment of property to the value of P1,500 unless he should give bond to answer in that amount. The clerk of the court issued the order of attachment upon the same date, and three days later the court rendered its decision finding the accused guilty and ordering him to indemnify the widow and children of the deceased in the sum of P1,000. The attachment was not immediately levied; but after an appeal had been taken, the sheriff, on November 28, 1917, levied the same upon five parcels of land and a house belonging to the accused. It does not appear from the record in this case whether the accused has ever given the bond necessary to procure the dissolution of this attachment, although upon December 19, 1917, after the cause had been brought to this Court by appeal, an order was here entered authorizing the Court of First Instance to act in the latter of dissolving the attachment, if bond should be given.

It is argued that the attachment granted in this case is sustainable under article 589 of the Law of Criminal Procedure of Spain, which is to the following effect:

ART 589. When from the record of a cause appear circumstances tending to establish the guilt of a person, the judge shall require him to give a bond sufficient to secure the pecuniary liabilities which may be finally adjudged, ordering in the same decree the attachment of sufficient property to cover such liabilities, should he fail to give bond.

The amount of the bond shall be fixed in the same decree and it shall not be less than one third of provable amount of the pecuniary liabilities.

We are of the opinion that this provisions and those related to it in the Spanish Code of Criminal Procedure were abrogated by necessary implication upon the enactment of General Orders No. 58. It is true that section 107 of this law recognizes the existence of the civil liability connected with the commission of crime and reserves the privileges previously secured by law to the person injured by the commission of an offense to take part in the prosecution and to recover damages. Nevertheless, we think that the commission of an offense to the procedure contained in the Spanish Code of Criminal Procedure relating to the attachment of property and giving of bond.

Upon reading the entire section 107 of General Orders No. 58, it appears obvious that the right which was intended to be saved by the reservation therein made was the right of the party injured to appear and to be heard in all stages of the case with reference to such liability and to obtain a judgment for the damages occasioned by the wrongful act, as well as the further right to appeal from any decision of the court denying any legal right connected therewith.

It is to be noted that while the “sumario” of Spanish criminal procedure is in many respects similar to the preliminary hearing before a committing magistrate conducted pursuant to section 13 and 14 of General Orders No. 58, there is nevertheless an important difference, which is that the “sumario” constitutes a preliminary stage in the criminal prosecution, and is not merely a step preparatory tot he initiation of the proceedings. The evidence taken in the “sumario” therefore, capable for being used in the plenary stage of the prosecution and if ratification was not required, served as the basis of judgment. (Ley de 18 de junio de 1870 ? Law of June 18, 1870.) On the contrary, the proceedings in the preliminary hearing never constitute a basis for a subsequent judicial declaration of guilt. The “sumario” has been abrogated by the enactment of General Orders No. 58 above referred to; and the ground expressed in article 589 of the Spanish Code of Criminal Procedure for the attachments of the property of the accused therefore no longer here exists.

With the adoption of General Orders No. 58, there was necessarily introduced into these Islands a system of criminal procedure embodying the principles recognized in the system of criminal procedure generally in vogue in the United States; and any characteristics or rule of the former system inconsistent with these principles must be held to have been abrogated. Attachment in American law is a purely statutory remedy. It does not exist unless expressly given by statute and as it is an extraordinary and summary remedy, it is unavailable except in those cases where the statute expressly permits its issuance.

It remains to consider whether or not the attachment can be sustained under the provisions of section 424, in connection with subsection 5 of section 412 of Code of Civil Procedure. The affidavit made in this case states substantially, we think, that the accused was selling his property with the intent to defraud the persons interested in the enforcement of the civil liability but considered as an application for an attachment under the provisions above cited, in connection with section 426 for the same Code, the affidavit was several respect defective. Disregarding these informalities, however, we are of the opinion that the remedy of attachment there provided is not available as an aide to the enforcement of the civil liability incident to prosecution for crime. These provisions contemplate the pendency of a civil action, and the remedy of attachment is merely an auxiliary to such action. Section 795 of the Code of Civil Procedure in its first paragraph declared that the procedure in all civil actions shall be in accordance with the provisions of the said Code and it is quite evident that the legislature in adopting this Code could not have intended to make its provisions in any respect applicable to the proceedings in a criminal prosecution. The mere circumstance that a civil prosecution is in our opinion no sufficient reason for holding that the remedy of attachment as designated for use in a civil action is available in the criminal proceeding.

From what has been said result that the attachment effected under the order of the Court of First Instance dated April 25, 1917. must be considered to have been improvidently granted. The same is hereby declared to be of no effect, by this declaration will of course in no wise prejudice the right of the widow and children of the deceased to enforce the payment of the indemnity for which judgment was rendered against the accused. The judgment of the trial court in respect to the penalty imposed upon the accused, is modified by subsisting 14 years 8 months and 1 day, reclusion temporal, with accessories prescribed in article 59 of the Penal Code for so much thereof as imposes the penalty of cadena perpetua, with the accessories prescribed in article 54 of the same Code. As thus modified the judgment of the lower court is affirmed, with costs against the appellant. So ordered.

Separate Opinions

MALCOLM, J., dissenting:

I agree with the main decision in its discussion of the facts and its qualification of the crime. I agree again that article 589 of the law of Criminal Procedure of Spain was necessarily abrogated upon the promulgation of General Order No. 58. I do not agree with the proposition that the attachment cannot be levied upon the property of the accused to secure the satisfaction of the civil liability incident to the commission of the homicide. In my judgment such action is both legal and proper.

The law of the Philippine Islands is made up of certain parts which we call statutes or codes. Yet this law is, if we interpret it understandingly, a harmonious and symmetrical system. To give unity to the whole, it is essential to visualize the law in its entirety and not as isolated segments. Even as to the codes, none is sufficient unto itself. For convenience each code is given a title which it treats of fully, but never completely. Each code necessarily must and should blend into every other code. To borrow a phrase of statutory construction, codes are in a sense in pari materia. For one to enumerate examples would be to demonstrate obvious.

There is no doubt as to the civil liability of a person for his criminal acts. To follow the doctrine laid down by Justice Torres in the United States

Every crime or misdemeanor gives rise to a penal or criminal action for the punishment of the guilty party, and also to a civil action for the restitution of the thing, repair of the damage, and indemnification for the losses; wherefore, after the prosecution of the criminal action, it shall be understood that the civil action has been utilized, for the reason that every person criminally liable for a crime of misdemeanor is also civilly liable (art. 17, Penal Code), unless the aggrieved party should expressly waive his right (art. 23). (Syllabus.)

When therefore, in a criminal action the courts are permitted to give judgment for a civil indemnity, they necessarily must have the power to make this remedy effective. This can only be done by going to the Code of Civil Procedure, which contains the appropriate provisions governing the subject of attachment. It would seem to be self-evident that the property of the accused should be kept intact to satisfy the accused to dispose of his property in order to escape the fulfillment of the entire judgment and to defeat the purposes of the law.

With the exception above noted, the judgment is correct.

Batas Pinas