G.R. No. L-9964; February 11, 1915
THE UNITED STATES, plaintiff-appellant, vs. LEON BANDINO, defendant-appellee.

FACTS:
On December 4, 1912, Leon Bandino, a municipal policeman of Antipolo, Rizal, was charged with the crime of faithlessness in the custody of prisoners committed with reckless negligence. The information alleged that on June 30, 1912, while Bandino had under his care a prisoner named Juan Lescano, who was serving a sentence in the municipal jail, he, with great carelessness and unjustified negligence, permitted the prisoner to leave the jail to buy cigarettes nearby. Lescano took advantage of the confusion in the crowd and escaped. The case was elevated to the Court of First Instance. The accused filed a demurrer, arguing the facts alleged did not constitute a crime. The trial court sustained the demurrer, holding that the escape was not effected with the custodian’s connivance, and ordered the fiscal to file a new complaint. The fiscal reproduced the complaint, adding the phrase “in tacit connivance with the said prisoner.” The defense again demurred. After hearing, the trial court sustained the demurrer and, upon the fiscal’s statement that he could not further amend the complaint, dismissed the case. The fiscal appealed.

ISSUE:
Whether the facts alleged in the information constitute the crime of faithlessness in the custody of prisoners under Article 358 of the Penal Code.

RULING:
Yes. The Supreme Court reversed the trial court’s order and remanded the case for further proceedings.
The Court held that for the crime of faithlessness in the custody of prisoners to exist, it is essential that there be connivance on the part of the custodian in the prisoner’s escape. Citing jurist Escriche, “connivance” is defined as dissimulation or tolerance by a superior of infractions committed by subordinates. The Court ruled that while the accused may not have had prior knowledge of the prisoner’s intent to escape, by permitting the prisoner to leave the jail, he afforded the prisoner an opportunity to escape. This permission constituted tolerance, which is deemed connivance. The escape was therefore effected through the custodian’s tolerance and connivance. The Court further stated that even if the crime was committed with carelessness or culpable negligence, it should not be dismissed and must be punished. Thus, the demurrer was improperly sustained.