G.R. No. L-8142; January 25, 1913
THE UNITED STATES, plaintiff-appellee, vs. ENRIQUE CLEMENTE, defendant-appellant.

FACTS

The defendant, Enrique Clemente, a motorman, was charged with homicide through reckless negligence for running over and killing a three-year-old child with a street car he was operating on Dakota Street in Manila. The trial court acquitted him of the charged crime of homicide through reckless negligence but found him guilty of the lesser offense of homicide through simple negligence in violation of a city ordinance, sentencing him to five months of arresto mayor. The court based its finding on the defendant’s violation of a city ordinance limiting street car speed to 12 miles per hour, concluding he was negligent but not recklessly so. The defendant appealed, contending that the trial court erred in taking judicial notice of the city ordinance without it being formally offered in evidence and that there was no evidence to support a finding of its violation.

ISSUE

(1) Whether a court of general jurisdiction can take judicial notice of a municipal ordinance in a criminal case for homicide through negligence under Article 568 of the Penal Code. (2) Whether the evidence supports the finding that the defendant violated the speed ordinance. (3) Whether, on appeal from a conviction of a lesser included offense, the appellate court can review the entire case and convict the accused of the greater offense originally charged.

RULING

(1) Yes. Under Article 568, paragraph 2, of the Penal Code, the violation of a regulation or ordinance is an integral part of the crime defined therein. Therefore, courts of general jurisdiction, being required to enforce this law, must know such ordinances and are authorized to take judicial notice of them. Any error in ascertaining the ordinance is correctable on appeal, like any other error of law. (2) Yes. The evidence showed the street car’s lever was set at “nine points,” producing a speed of about 23 miles per hour, and the car required 36.8 meters to stop after hitting the child. This sufficiently proved a violation of the ordinance limiting speed to 12 miles per hour. (3) Yes. The crime of homicide through simple negligence with violation of an ordinance is, under the facts of this case, a lesser offense included in the charged crime of homicide through reckless negligence. An appeal from a conviction of the lesser offense opens the entire case for review. The Supreme Court found the evidence overwhelming for reckless negligence, reversing the trial court’s judgment. The defendant is convicted of homicide through reckless negligence and sentenced to one year and one day of prision correccional, with accessories and costs.