GR L 14128; (December, 1918)

EN BANC

G.R. No. L-14128 December 10, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
SEVERINO VALDES Y GUILGAN, defendant-appellant.

Ariston Estrada for appellant.
Attorney-General Paredes for appellee.

TORRES, J.:

This cause was instituted by a complaint filed by the prosecuting attorney before the Court of First Instance of this city, charging Severino Valdes y Guilgan and Hugo Labarro y Bunaladi, alias Hugo Navarro y Bunadia, with the crime of arson, and, on the 20th of May of the present year, judgment was rendered whereby Severino or Faustino Valdes u Guilgan was sentenced to six years and one day of presidio mayor and to pay one-half of the costs. From this judgment this defendant appealed. With respect to Hugo Labarro or Navarro, the proceedings were dismissed with the other half of the costs de officio.

Between 8 and 9 o’clock in the morning of April 28th of this year, when M. D. Lewin was absent from the house in which he was living his family, at No. 328, San Rafael Street, San Miguel, Mrs. Auckback, who appears to have been a resident of the neighborhood, called Mrs. Lewin and told her that much smoke was issuing from the lower floor of the latter’s house, for until then Mrs. Lewin had not noticed it, and as soon as her attention was brought to the fact she ordered the servant Paulino Banal to look for the fire, as he did and he found, so asked with kerosene oil and placed between a post of the house and a partition of the entresol, a piece of a jute sack and a rag which were burning. At that moment the defendant Valdes was in the entresol, engaged in his work of cleaning, while, the other defendant Hugo Labarro was cleaning the horses kept at the place.

On the same morning of the occurrence, the police arrested the defendants, having been called for the purpose by telephone. Severino Valdes, after his arrest, according to the statement, Exhibit C, drawn up in the police station, admitted before several policemen that it was he who had set the fire to the sack and the rag, which had been noticed on the date mentioned. and he also who had started the several other fires which had occurred in said house on previous days; that he had performed such acts through the inducement of the other prisoner, Hugo Labarro, for they felt resentment against, or had trouble with, their masters, and that, as he and his coaccused were friends, he acted as he did under the promise on Labarro’s part to give him a peso for each such fire that he should start. lawphi1.net

The defendant Severino Valdes admitted, in an affidavit, that he made declarations in the police station, although he denied having placed the rag and piece of jute sack, soaked with kerosene, in the place where they were found, and stated, that it was the servant Paulino who had done so. He alleged that, on being arraigned, he stated that he had set fire to a pile of dry mango leaves that he had gathered together, which is contrary to the statement he made in the police station, to wit, that he had set the fire to the said rag and piece of sack under the house.

For lack of evidence and on his counsel’s petition, the case was dismissed with respect to the other defendant Hugo Labarro.

Owing to the repeated attempts made for about a month past, since Severino Valdes Began to serve the Lewin family, to burn the house above mentioned. occupied by the latter and in which this defendant was employed, some policemen were watching the building and one of them, Antonio Garcia del Cid., one morning prior to the commission of the crime, according to his testimony, saw the defendant Valdes climbing up the wall of the warehouse behind the dwelling house, in which warehouse there was some straw that had previously been burned, and that, when the defendant noticed the presence of the policeman, he desisted from climbing the wall and entering the warehouse.

The fact of setting fire to a jute sack and a rag, soaked with kerosene oil and placed beside an upright of the house and a partition of the entresol of the building, thus endangering the burning of the latter, constitutes the crime of frustrated arson of an inhabited house, on an occasion when some of its inmates were inside of it.. This crime of provided for and punished by article 549, in connection with articles 3, paragraph 2, and 65 of the Penal Code, and the sole proven perpetrator of the same by direct participation is the defendant Severino Valdes, for, notwithstanding his denial and unsubstantiated exculpations, the record discloses conclusive proof that it was he who committed the said unlawful act, as it was also he who was guilty of having set the other fires that occurred in said house. In an affidavit the defendant admitted having made declarations in the police station, and though at the trial he denied that he set fire to the sacks and the rag which were found soaked in kerosene and burning, and, without proof whatever, laid the blame unto his codefendant, the fact is that confessed to having set fire to a pile of dry leaves whereby much smoke arose from the lower part of the house, but which, however, did not forewarn his mistress, Mrs. Lewin, though she should have noticed it, and he allowed the sack and the rag to continue burning until Mrs. Auckback noticing a large volume of smoke in the house, gave the alarm. No proof was submitted to substantiate the accusation he made against the servant Paulino, who apparently is the same persons as the driver Hugo Labarro.

The crime is classified only as frustrated arson, inasmuch as the defendant performed all the acts conceive to the burning of said house, but nevertheless., owing to causes independent of his will, the criminal act which he intended was not produced. The offense committed cannot be classified as consummated arson by the burning of said inhabited house, for the reason that no part of the building had yet commenced to burn, although, as the piece of sack and the rag, soaked in kerosene oil, had been placed near partition of the entresol, the partition might have started to burn, had the fire not been put out on time.

There is no extenuating or aggravating circumstance to be considered in a connection with the commission of the crime, and therefore the penalty of presidio mayor immediately inferior in degree to that specified in article 549 of the Penal Code, should be imposed in its medium degree.

For the foregoing reasons the judgment appealed from should be affirmed, with the modification however, that the penalty imposed upon the defendant shall be given eight years and one day of presidio mayor, with the accessory penalties prescribed in article 57 of the Code. The defendant shall also pay the costs of both instances. So ordered.

Arellano, C.J., Johnson, Araullo, Street, Malcolm and Avanceña, JJ., concur.

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