EN BANC [G.R. No. 123918, December 09, 1999] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.

AUGUSTO LORETO RINGOR, JR., ACCUSED-APPELLANT. DECISION

PURISIMA, J.: For automatic review is the Decision[1] ated November 13, 1995 of Branch 6 of the Regional Trial Court in Baguio City, finding accused-appellant Augusto Loreto Ringor, Jr. guilty of the crime of murder and sentencing him to suffer the supreme penalty of death in Criminal Case No. 13102-R, also guilty of illegal possession of firearms under P.D. No. 1866 in Criminal Case No. 13100-R for and disposing thus: "WHEREFORE, Judgment is rendered as follows: 1. In Criminal Case No. 13102, the Court Finds (sic) the accused Augusto Loreto Ringor Guilty beyond reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal Code as amended by Section 6, RA 7659, qualified by Treachery and as further qualified by the use of an unlicensed firearm and hereby sentences him to suffer the supreme penalty of Death; to indemnify the heirs of deceased Marcelino Florida, Jr., the sum of P50,000.00 for his death and the sum of P100,000.00 as Moral damages for his death, both indemnification being without subsidiary imprisonment in case of insolvency and to pay the costs. 2. In Criminal Case No. 13100-R, the Court Finds (sic) accused Augusto Loreto Ringor Guilty beyond reasonable doubt of the offense of Violation of Section 1 PD 1866 (Illegal Possession of firearm and ammunitions) as charged in the Information and hereby sentences him, applying the Indeterminate Sentence Law, to an imprisonment ranging from 17 years 4 months and I day as Minimum to 20 years as Maximum and to pay the costs. The subject gun, caliber .38 (Paltik) bearing Serial Number 853169 (Exh. A) being the subject of the offense is hereby declared confiscated and forfeited in favor of the State. The accused Augusto Loreto Ringor is entitled to be credited in the service of his sentence four fifth (4/5) of his preventive imprisonment in accordance with Article 29 of the Revised Penal Code. SO ORDERED."[2] Filed on June 28, 1994, the Informations against accused-appellant, alleges: In Criminal Case No. 13102-R "That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being then armed with a Caliber 38 handgun paltick with Serial Number 853169 and with intent to kill, did then and there willfully, unlawfully, and feloniously attack, assault and shoot MARCELINO BUSLAY FLORIDA, JR. thereby inflicting upon the latter hypovolemic shock secondary to massive hemorrhage; multiple gunshot wounds of the liver, stomach, small intestine and mesentric blood vessels, which injuries directly caused his death. That the qualifying circumstance of TREACHERY attended the commission of the crime when the accused suddenly attacked victim and shot him several times at the back, with the use of a handgun, thus employing means, methods of forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. CONTRARY TO LAW."[3] and in Criminal Case No. 13100-R

"That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines, and within the jurisdiction of this honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously possess and carry outside of his residence, a firearm, Caliber .38 revolver (Paltik) bearing Serial Number 853169, without any legal authority or permit from any government official or authority concerned, in violation of the above cited provision of law. CONTRARY TO LAW."[4] With the accused-appellant, assisted by counsel, entering a plea of Not Guilty upon arraignment, a joint trial of the two cases ensued. The inculpatory facts and circumstances sued upon are succinctly summarized in the Appellee's Brief as follows: "On June 23, 1994, at around 6:00 P.M.(sic), Fely Batanes, a waitress at People's Restaurant located at Kalantiao St., Baguio City, saw appellant Ringor and his two companions enter the restaurant. (Tsn, December 8, 1994, p. 4). After seating themselves, the group ordered a bottle of gin (ibid., p. 6). Minutes later, appellant approached one of the tables where Florida, the restaurant's cook was drinking beer. Without any warning, appellant pulled Florida's hair and poked a knife on the latter's throat. Florida stood up and pleaded with appellant not to harm him (ibid., p. 7). Appellant relented and released his grip on Florida. Thereafter, he left the restaurant together with his companions. However, a few minutes latter he was back (ibid, p.8). Appellant brandished a gun and menacingly entered the restaurant. Not encountering any resistance, he thus proceeded to the kitchen where Florida worked (ibid). Stealthily approaching Florida from behind, appellant fired six successive shots at Florida who fell down (Ibid., p. 9). His evil deed accomplished, appellant left the kitchen and fled (ibid). Appellant was chased by a man who while running, shouted at onlookers that the person he was running after was armed and had just killed somebody. Alerted, SPO2 Fernandez, who was then in the vicinity, went into action and nabbed appellant. He frisked appellant and recovered from him a Paltik revolver, caliber. 38, with Serial Number 853169 (Exh. A). He checked the revolver's cylinder and found six empty cartridges (Exhs. T to T-6). He noted that it smelled of gunpowder. He and PO1 Ortega turned over appellant and the confiscated firearm to the Investigation Division of the Baguio Police and then executed a Joint Affidavit of Arrest (Exhibit O). On the same night, Fely Batanes gave her sworn statement (Exhibit E) to the Baguio Police wherein she positively identified appellant as the assailant." xxx xxx xxx xxx xxx xxx

NBI Forensic Chemist Ms. Carina Javier found both hands of appellant positive for nitrates as stated in her Chemist Report No. C-94-22. She conducted a microscopic chemical examination on the subject firearm and found that the gun was fired within one week prior to June 27, 1994. Elmer Nelson Piedad, Ballistician of the Firearm Investigation Division, NBI, Manila, tested and concluded that the slugs recovered from the victim were fired from appellant's firearm. Upon verification from the Firearms Explosive division, Camp Crame, Quezon City, it was found that appellant is not a licensed firearm holder nor, was the subject firearm duly registered with the said office (Exh. A)."[5] The autopsy conducted by Dr. John Tinoyan on the cadaver of the deceased yielded a Necropsy Report, which states: "POSTMORTEM FINDINGS `Body of a male, 1.66 m. height, medium built, with complete rigor mortis, lividity well developed on the dependent parts, cloudy cornea and dilated pupils with very pale papebral conjunctive.

`Gunshot wounds: GSW no.1 measuring 10 x 10 mm. serrated edges, positive powder burns located at the left mid clavicular line, posterior, 2 inches below the shoulder. It was directed downward towards the midbody, penetrating the skin. (sic) soft tissue, middle 3rd of the 3rd rib, the upper and lower lobes of the left lung to the diaphragm, through and through the stomach, lacerating the superior mesentric vessels, perforating the small intestine then lodged at the superior surface of the urinary bladder (slug was recovered marked no. 1) `GSW no.2 measures 8 mm. diameter, positive powder burns, located on the right shoulder near the s. joint posteriorly, penetrating the skin, soft tissue, then lodged at the surface of the fractured surgical neck of the humorous (sic) (slug recovered). Marked no. 2. `GSW no. 3 measures 8 mm. Diameter, positive powder burns, located on the right shoulder posteriorly near the joint penetrating the skin, soft tissues, and the head of the Humorous, (sic) then dislodged form the same entry point. `GSW no. 4 measures 8 x 10 mm, oval shaped, with abrasion superiorly located at the anterior left parasternal line at the level of the 6th ICS. It was directed downward towards the posterior of the body, penetrating the skin, soft tissue, the left lobe of the liver with partial avulsion, then perforating the stomach through and though the duodenum lumbar muscle then lodged underneath the skin, (1) paravertebral, level of L3 (slug recovered marked no. 4). `CAUSE OF DEATH: `HYPOVOLEMIC SHOCK SECONDARY TO MASSIVE HEMORRHAGE; MULTIPLE GUNSHOT WOUND(S) OF THE LIVER, STOMACH, SMALL INTESTINE AND MESENTRIC BLOOD VESSELS. Multiple Gunshot Wound(s) of the body.'[6] Accused-appellant admitted shooting the victim but theorized that he acted in self-defense. As embodied in the Appellant's Brief, the defense version runs thus: "3.01 On June 23, 1994, at a little after five o'clock in the afternoon, appellant, together with two (2) other companions, entered the People's Restaurant in Baguio City to order drinks. They sat at a table next to another then occupied by Marcelino B. Florida, Jr. (`Florida') and a woman companion (TSN, Testimony of Augusto Loreto G. Ringor, Jr., May 4, 1995, pp. 3-6). 3.02 Soon after receiving their orders, appellant's companion, Ramon Fernandez, stood up and approached Florida to inquire about his (Fernandez') brother, Cesar. Florida angrily responded to the query and said, `Putang ina ninyo! anong pakialam ko diyan!' 3.03 A quarrel thereafter ensued between Fernandez and Florida prompting the appellant to intervene and pacify Fernandez. When Fernandez drew out a gun from his waist, appellant immediately seized the same directing his friend to leave the restaurant before he started hurting other people with his gun. No sooner had Fernandez stepped out, however, Florida, armed with a bolo, came charging in from the kitchen and headed towards the appellant. (Ibid, pp. 6 - 7) 3.04 Surprised, appellant shot Florida with the gun he was holding just as the latter was about to hit him with the bolo. Thereafter, appellant put the gun on the table and walked out of the restaurant. Once already outside the restaurant, appellant's other companion, Virgilio, followed him and handed to him the gun he (appellant) left at the table. He then proceeded to surrender the gun and report the incident at the nearest police station. (Ibid, pp. 8 - 9) 3.05 Before appellant could reach the police station, however, appellant was already arrested by off-duty policeman who brought him back to the People's Restaurant. Appellant was thereafter incarcerated at the Baguio City Police Station. (Ibid, pp. 10 - 12)"[7]

On November 13, 1995, the trial court handed down the decision under automatic review. Accusedappellant contends that: I THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT FOR SIMPLE ILLEGAL POSSESSION OF FIREARMS AND SENTENCING HIM TO SUFFER AN INDETERMINATE SENTENCE OF 17 YEARS AND 1 DAY AS MINIMUM TO 20 YEARS AS MAXIMUM. II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF MURDER. III THE TRIAL COURT SERIOUSLY ERRED IN SENTENCING THE ACCUSED TO DEATH ON THE GROUNDS THAT: (i) THE CHARGE OF MURDER WAS NOT PROVED BY THE PROSECUTION; AND (ii) ASSUMING ARGUENDO THAT MURDER WAS COMMITTED BY APPELLANT, THE APPROPRIATE PENALTY FOR THE OFFENSE IS RECLUSION PERPETUA THERE BEING NO AGGRAVATING CIRCUMSTANCE TO RAISE THE PENALTY TO DEATH.[8] Well-settled is the rule that in interposing self-defense, the offender admits authorship of the killing. The onus probandi is thus shifted to him to prove the elements of self-defense and that the killing was justified;[9] otherwise, having admitted the killing, conviction is inescapable. Concomitantly, he must rely on the strength of his own evidence and not on the weakness of the prosecution's evidence.[10] For self-defense to prosper, it must be established that: (1) there was unlawful aggression by the victim; (2) that the means employed to prevent or repel such aggression was reasonable; and (3) that there was lack of sufficient provocation on the part of the person defending himself.[11] In the case at bar, accused-appellant failed to prove the element of unlawful aggression. The allegation that the victim allegedly went out of the kitchen armed with a bolo, and was about to hack him (accusedappellant) who was then at an almost prone lying position on the table he was occupying,[12] is a self-serving and unconvincing statement which did not in anyway constitute the requisite quantum of proof for unlawful aggression. Prosecution witness Fely Batanes, a waitress in the restaurant where the shooting incident occurred, was firm in her declaration that the victim was in the kitchen unarmed[13] hen the accusedappellant shot him. The victim had no weapon or bolo. He was neither threatening to attack nor in any manner manifesting any aggressive act which could have imperiled accused-appellant's safety and wellbeing. No improper motive having been shown on the part of Fely Batanes to testify falsely against accusedappellant or to implicate him in the commission of the crime, the logical conclusion is that there was no such improper motive and her testimony is worthy of full faith and credit.[14] What is more, the testimony of Fely Batanes is buttressed by the fact that immediately after the incident, the body of the victim was found lying in the kitchen and not outside; thus weakening further the theory of accused-appellant that he shot the victim while they were at the dining area.[15] Then too, the nature, location and number of gunshot wounds inflicted on the deceased belie accusedappellant's theory of self-defense.[16] The deceased sustained three gun shot wounds on the back and one in front. Dr. John Tinoyan, who conducted the autopsy on the cadaver of the victim, testified that the gunshot wound on the frontal portion of the victim's body showed a downward trajectory of the bullet on his chest, penetrating the liver, perforating the stomach down to the small intestine, and then lodged underneath the skin.[17] Verily, such finding negates the claim of accused-appellant that he shot the victim while he was at an almost prone lying position and the victim was standing in front of him about to strike with a bolo. If this

were true, the trajectory of the bullet should have been upward or better still, it should have been at the level at which the gun was fired while he (accused-appellant) was in a prone lying position. Rather telling are the three gunshot wounds on the back of the victim, which wounds showed traces of gunpowder which, according to Dr. Tinoyan, indicated that the weapon used was at a distance of less than one meter.[18] Evidently, accused-appellant stealthily approached the victim from behind and fired at him six successive shots, four of which hit him, to ensure his death.[19] If he shot the victim merely to defend himself, there would have been no cause for accused-appellant to pump several bullets into the body of the victim. In light of the foregoing, the imputation of unlawful aggression on the part of the victim cannot be believed. Absent the element of unlawful aggression by the deceased, there can be no self-defense, complete or incomplete. If there was no unlawful aggression, there was nothing to prevent or repel and the second and third requisites of self-defense would have no basis.[20] The Court a quo properly appreciated the aggravating circumstance of treachery which qualified the crime to murder. It was clearly established that the accused-appellant fired six successive shots on the victim, suddenly, without warning, and from behind, giving the victim no chance to flee or to prepare for his defense or to put up the least resistance to such sudden assault. There is treachery when the means, manner or method of attack employed by the offender offered no risk to himself from any defensive or retaliatory act which the victim might have taken.[21] All things studiedly considered and viewed in proper perspective, the mind of the Court can rest easy on a finding that accused-appellant Augusto Loreto Ringor, Jr. is guilty beyond reasonable doubt of the crime of murder, and did not act in self-defense. Article 248 of the Revised Penal Code, as amended, prescribes the penalty ofreclusion perpetua to death for the crime of murder. When, as in this case, neither aggravating nor mitigating circumstance is attendant, the lesser penalty of reclusion perpetua has to be applied,[22] in accordance with Article 63(2) of the Revised Penal Code. With respect to the conviction of accused-appellant for illegal possession of firearms under P. D. No. 1866, it was held in the case of People vs. Molina[23] nd reiterated in the recent case of People vs. Ronaldo Valdez,[24] that in cases where murder or homicide is committed with the use of an unlicensed firearm, there can be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in view of the amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply considered as an aggravating circumstance in the murder or homicide and no longer as a separate offense. Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no other crime is committed.[25] In other words, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance.[26] It bears stressing, however, that the dismissal of the present case for illegal possession of firearm should not be misinterpreted to mean that there can no longer be any prosecution for the offense of illegal possession of firearms. In general, all pending cases involving illegal possession of firearms should continue to be prosecuted and tried if no other crimes expressly provided in R. A. No. 8294 are involved (murder or homicide, under Section 1, and rebellion, insurrection, sedition or attempted coup d' etat, under Section 3).[27] Pursuant to Article 22 of the Revised Penal Code, where the new law is favorable to the accused, it has to be applied retroactively. Thus, insofar as it spares accused-appellant a separate conviction for illegal possession of firearms, Republic Act No. 8294 has to be given retroactive application in Criminal Case No. 13100-R.

On the matter of the aggravating circumstance of "use of unlicensed firearm" in the commission of murder or homicide, the trial court erred in appreciating the same to qualify to death the penalty for the murder committed by accused-appellant. It should be noted that at the time accused-appellant perpetrated the offense, the unlicensed character of a firearm used in taking the life of another was not yet an aggravating circumstance in homicide or murder; to wit: "Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying circumstance and not as an offense. That could not have been the intention of the lawmaker because the term `penalty' in the subject provision is obviously meant to be the penalty for illegal possession of firearm and not the penalty for for homicide or murder. We explicitly stated in Tac-an: There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in homicide or murder. Under an information charging homicide or muder, the fact that the death weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense of homicide or murder to death (or reclusion perpetuaunder the 1987 Constitution). The essential point is that the unlicensed character or condition of the instrument used in destroying human life or committing some other crime, is not included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal Code. A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance.'[28] (Emphasis supplied) Thus, before R.A. No. 8294 (which took effect on July 6, 1997) made the use of unlicensed firearm as an aggravating circumstance in murder or homicide, the penalty for the murder committed by accusedappellant on June 23, 1994 was not death, as erroneously imposed by the trial court. There was yet no such aggravating circumstance of use of unlicensed firearm to raise the penalty for murder fromreclusion perpetua to death, at the time of commission of the crime. The amendatory law making the "use of an unlicensed firearm" as an aggravating circumstance in murder or homicide, cannot be applied here because the said provision of R.A. No. 8294 is not favorable to accusedappellant, lest it becomes an ex post facto law.[29] WHEREFORE, the decision in Criminal Case No. 13102-R is AFFIRMED with the modification that accusedappellant Augusto Loreto Ringor, Jr. is hereby sentenced to suffer the penalty of reclusion perpetua. It is understood that the civil liabilities imposed below are UPHELD. Criminal Case No. 13100-R instituted pursuant to Presidential Decree No. 1866 is DISMISSED. No pronouncement as to costs. SO ORDERED. Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago, and De Leon Jr., JJ., concur. Davide, Jr., C.J., (Chairman), and Panganiban, J., in the result.

[1]

Penned by Judge Ruben C. Ayson. Decision, Rollo, pp. 40 - 41. Rollo, p. 13 Rollo, p. 11. Appellee's Brief, Rollo, pp. 155 - 158.

[2]

[3]

[4]

[5]

[6]

Ibid., Rollo, pp. 156-157. Appellant's Brief, Rollo, pp. 66 -67. Ibid, pp. 67 - 72.

[7]

[8]

[9]

People vs. Unarce, 270 SCRA 756, pp. 762 - 763; citing: People vs. Macagaling, 237 SCRA 299 [1994]; People vs. Alapide, 236 SCRA 555 [1994]; People vs. Ocana, 229 SCRA 341 [1994]; Bitalac vs. CA, 241 SCRA 351 [1995].
[10]

Ibid, citing: People vs. Gregorio, 255 SCRA 380 [1996]; People vs. Aliviado, 247 SCRA 302 [1995]; People vs. Decena, 235 SCRA 67 [1994]; People vs. Salazar, 221 SCRA 170 1993].
[11]

Ibid, citing: People vs. Gregorio, supra; People vs. Morin, 241 SCRA 709 [1995];People vs. Flores, 237 SCRA 635 [1994]; People vs. Gutual, 254 SCRA 37 [1996];People vs. Bernal, 254 SCRA 699 [1996].
[12]

Tsn, p. 16; cross-examination of Augusto Loreto Ringor, May 4, 1995. Tsn., p. 25; cross-examination of Fely Batanes, December 13, 1994. People vs. Pija, 245 SCRA 80, pp. 84-85; citing: People vs. Rostata, Jr., 218 SCRA 657. Tsn., cross-examination of Augusto Loreto Ringor, May 4, 1995, p. 17.

[13]

[14]

[15]

[16]

People vs. Unarce, supra, p. 764, citing: People vs. Morin, supra; People vs. Camahalan, 241 SCRA 558 [1995]; People vs. Tanduyan, 236 SCRA 433 [1994];People vs. Amaro, 235 SCRA 8 [1994]; People vs. Gregorio, 255 SCRA 380 [1996];People vs. Layam, 234 SCRA 424 [1994].
[17]

Tsn, cross examination of Dr. John Tinoyan, December 13, 1994, pp. 6, 10 - 11. Ibid, pp. 4 - 6. Ibid, p. 10.

[18]

[19]

[20]

People vs. Unarce, supra, p. 764, citing: People vs. Ramirez, 203 SCRA 25 [1991]; People vs. Alapide 236 SCRA 555 [1994]; and People vs. Morato 244 SCRA 361 [1993].
[21]

Ibid., p. 765, citing: Rosales vs. Court of Appeals, 255 SCRA 123 [1996]; People vs. Bello, 237 SCRA 347 1994]; People vs. Muyano, 235 SCRA 184 >[1994]; Art. 14, Revised Penal Code.
[22]

Article 63 (2) of the Revised Penal Code. 292 SCRA 742. G.R. No. 127663, March 11, 1999. Section 1 of R.A. No. 8294. People vs. Molina, supra, at p. 782. People vs. Valdez, supra.

[23]

[24]

[25]

[26]

[27]

[28]

People vs. Molina, supra, pp. 782-783; citing: People vs. Tac-an, 182 SCRA 601 and People vs. Quijada, 295 SCRA 191.
[29]

People vs. Ronaldo Valdez, supra.

EN BANC

[G.R. No. 149453. October 7, 2003]

PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUO, STATE PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO ARELLANO, petitioners, vs. PANFILO M. LACSON, respondent. RESOLUTION
CALLEJO, SR., J.:

Before the Court are the following motions of the respondent, to wit: (a) Omnibus Motion;[1] (b) Motion for Reconsideration;[2] (c) Supplement to Motion for Reconsideration;[3] (d) Motion To Set for Oral Arguments.[4]

The Omnibus Motion The respondent seeks the reconsideration of the April 29, 2003 Resolution of this Court which granted the petitioners motion for reconsideration. The respondent thereafter prays to allow Associate Justices Renato C. Corona, Ma. Alicia AustriaMartinez, Conchita C. Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna to voluntary inhibit themselves or, absent their consent, rule that such inhibition is in order and to recuse them from further deliberating, discussing or, in any manner, participating in the resolution of the Motion for Reconsideration and the Supplement to Motion for Reconsideration. The respondent points out that the aforenamed members of the Court were appointed by President Gloria Macapagal-Arroyo after the February 19, 2002 oral arguments and after the case at bar was submitted for the decision of the Court. He asserts that although A.M. No. 99-8-09-SC[5] specifically provides that it applies only to the divisions of the Court, it should likewise apply to this case, in light of the April 1, 2003 Resolution of this Court which set aside its Resolution dated May 28, 2002, apart from the constitutional issues raised by the respondent in his motion for reconsideration

and its supplement. As such, according to the respondent, the instant case should be unloaded by Justice Callejo, Sr. and re-raffled to any other member of the Court. The Court resolves to deny the respondents motion for lack of merit. The records show that as early as May 24, 2002, the respondent filed an urgent motion for the recusation of Justices Renato C. Corona and Ma. Alicia Austria-Martinez for the reason that they were appointed to the Court after the February 19, 2002 oral arguments and did not participate in the integral portions of the proceedings. Justices Corona and Austria-Martinez refused to inhibit themselves and decided to participate in the deliberation on the petition.[6] On March 18, 2003, the respondent filed a motion with the Court for the recusation of Justice Romeo J. Callejo, Sr. on account of his voluntary inhibition when the case was pending before the Court of Appeals. On March 25, 2003, this Court issued a resolution denying the respondents Motion dated March 18, 2003. The respondent thereafter filed his motion for reconsideration of the April 1, 2003 Resolution of the Court in which he prayed,inter alia, for the inhibition of Justice Callejo, Sr. under A.M. No. 99-8-09-SC and that the case be re-raffled to another member of the Court who had actually participated in the deliberation and the rendition of its May 28, 2002 Resolution. The respondent likewise sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna, again for the reason that they were appointed to the Court after the oral arguments on February 19, 2002 and after the case had already been submitted for decision. On April 29, 2003, this Court issued a resolution denying the aforesaid motions of the respondent.[7] The Court ruled that A.M. No. 99-8-09-SC is applicable only to cases assigned to the divisions of the Court:

The respondents reliance on Supreme Court Circular No. 99-8-09 is misplaced. As admitted by the respondent, the said circular is applicable only to motions for reconsideration in cases assigned to the Divisions of the Court. For cases assigned to the Court En Banc, the policy of the Court had always been and still is, if the ponente is no longer with the Court, his replacement will act upon the motion for reconsideration of a party and participate in the deliberations thereof. This is the reason why Justice Callejo, Sr. who had replaced retired Justice De Leon, prepared the draft of the April 1, 2003 Resolution of the Court.
[8]

The Court also ruled that there was no need for its newest members to inhibit themselves from participating in the deliberation of the respondents Motion for Reconsideration:

Although Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr., and Adolfo S. Azcuna were not yet members of the Court during the February 18, 2002 oral arguments before the Court, nonetheless they were not disqualified to participate in the deliberations on the petitioners motion for reconsideration of the May 28, 2002 Resolution of the Court or of the instant motion for reconsideration. Neither is Justice Callejo, Sr. disqualified to prepare the resolution of the Court on the motion for
[9]

reconsideration of the respondent. When the Court deliberated on petitioners motion for reconsideration, Justices Conchita Carpio-Morales, Romeo J. Callejo, Sr. and Adolfo S. Azcuna were already members of the Court. It bears stressing that transcripts of stenographic notes taken during the February 18, 2002 hearing and oral arguments of the parties are parts of the records of this case. Said transcripts are available to the parties or to any member of the Court. Likewise, Attys. Rene A.V. Saguisag and Felix Carao, Jr. may not yet have been the counsel of the respondent on February 18, 2002 but by reading the said transcripts and the records of this case they are informed of what transpired during the hearing and oral arguments of the parties.
[10]

It is thus clear that the grounds cited by the respondent in his omnibus motion had already been passed upon and resolved by this Court. The respondent did not make any new substantial arguments in his motion to warrant a reconsideration of the aforesaid resolutions. Besides, the respondent sought the inhibition of Justices Conchita C. Morales and Adolfo S. Azcuna only after they had already concurred in the Courts Resolution dated April 1, 2003. Case law has it that a motion for disqualification must be denied when filed after a member of the Court has already given an opinion on the merits of the case, the rationale being that a litigant cannot be permitted to speculate upon the action of the Court, only to raise an objection of this sort after a decision has been rendered.[11]

The Motion to Set the Case for Oral Arguments The Court denies the motion of the respondent. The parties have already extensively discussed the issues involved in the case. The respondents motion for reconsideration consists of no less than a hundred pages, excluding the supplement to his motion for reconsideration and his reply to the petitioners comment on his motion. There is no longer a need to set the instant case for oral arguments.

The Issue as to the Application of the Time-bar under Section 8, Rule 117 of the Revised Rules of Criminal Procedure Whether Prospective or Retroactive The respondent seeks the reconsideration of the April 1, 2003 Resolution of the Court and thereafter reinstate its Resolution of May 28, 2002.

He asserts that pursuant to a long line of jurisprudence and a long-standing judicial practice in applying penal law, Section 8, Rule 117 of the Revised Rules of Criminal Procedure (RRCP) should be applied prospectively and retroactively without reservations, only and solely on the basis of its being favorable to the accused. He asserts that case law on the retroactive application of penal laws should likewise apply to criminal procedure, it being a branch of criminal law. The respondent insists that Section 8 was purposely crafted and included as a new provision to reinforce the constitutional right of the accused to a speedy disposition of his case. It is primarily a check on the State to prosecute criminal cases diligently and continuously, lest it loses its right to prosecute the accused anew. The respondent argues that since Section 8 is indubitably a rule of procedure, there can be no other conclusion: the rule should have retroactive application, absent any provision therein that it should be applied prospectively. Accordingly, prospective application thereof would in effect give the petitioners more than two years from March 29, 1999 within which to revive the criminal cases, thus violating the respondents right to due process and equal protection of the law. The respondent asserts that Section 8 was meant to reach back in time to provide relief to the accused. In this case, the State had been given more than sufficient opportunity to prosecute the respondent anew after the March 29, 1999 dismissal of the cases by then Judge Wenceslao Agnir, Jr. and even before the RRCP took effect on December 1, 2000. According to the respondent, the petitioners filed the Informations with the RTC in Criminal Cases Nos. 01-101102 to 01-101112 beyond the two-year bar, in violation of his right to a speedy trial, and that such filing was designed to derail his bid for the Senate. In their comment on the respondents motions, the petitioners assert that the prospective application of Section 8 is in keeping with Section 5(5), Article VIII of the 1987 Constitution, which provides in part that the rules of procedure which the Court may promulgate shall not diminish, increase or modify substantial rights. While Section 8 secures the rights of the accused, it does not and should not preclude the equally important right of the State to public justice. If such right to public justice is taken away, then Section 8 can no longer be said to be a procedural rule. According to the petitioners, if a procedural rule impairs a vested right, or would work injustice, the said rule may not be given a retroactive application. They contend that the right of the accused to a speedy trial or disposition of the criminal cases applies only to outstanding and pending cases and not to cases already dismissed. The petitioners assert that the refiling of the cases under Section 8 should be taken to mean as the filing of the criminal complaint with the appropriate office for the purpose of conducting a preliminary investigation, and not the actual filing of the criminal complaint or information in court for trial. Furthermore, according to the petitioners, the offended parties must be given notices of the motion for provisional dismissal of the cases under Section 8 since the provision so expressly states. Thus, if the requisite notices to the heirs of the deceased would be taken into consideration, the two-year period had not yet even commenced to run. In his consolidated reply to the comment of the petitioners, the respondent asserts that the State is proscribed from refiling a criminal case if it can be shown that the delay

resulted in a violation of the right of the accused to due process. In this case, there was an inordinate delay in the revival of the cases, considering that the witnesses in the criminal cases for the State in March 1999 are the same witnesses in 2001. The State had reasonable opportunity to refile the cases before the two-year bar but failed to do so because of negligence; and perhaps institutional indolence. Contrary to the petitioners contention, the respondent posits that the revival of the cases contemplated in Section 8 refers to the filing of the Informations or complaints in court for trial. The operational act then is the refiling of the Informations with the RTC, which was done only on June 6, 2001, clearly beyond the two-year bar. The Court finds the respondents contentions to be without merit. First. The Court approved the RRCP pursuant to its power under Article VIII, Section 5, paragraph 5 of the Constitution which reads:

(5)

Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

The Court is not mandated to apply Section 8 retroactively simply because it is favorable to the accused. It must be noted that the new rule was approved by the Court not only to reinforce the constitutional right of the accused to a speedy disposition of the case. The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the criminal justice system for the benefit of the State and the accused; not for the accused only. The Court emphasized in its assailed resolution that:

In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It took into account the substantial rights of both the State and of the accused to due process. The Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused and notice to the offended parties. The time-bar fixed by the Court must be respected unless it is

shown that the period is manifestly short or insufficient that the rule becomes a denial of justice.
[12]

In criminal litigations concerning constitutional issue claims, the Court, in the interest of justice, may make the rule prospective where the exigencies of the situation make the rule prospective. The retroactivity or non-retroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background or precedent, and its own impact on the administration of justice, and the way in which these factors combine must inevitably vary with the dictate involved.[13] Matters of procedure are not necessarily retrospective in operation as a statute.[14] To paraphrase the United States Supreme Court per Justice Benjamin Cardozo, the Court in defining the limits of adherence may make a choice for itself between the principle of forward operation and that of relating forward.[15] The Court approved Section 8 pursuant to its power under Article VIII, Section 5, paragraph 5 of the Constitution. This constitutional grant to promulgate rules carries with it the power, inter alia, to determine whether to give the said rules prospective or retroactive effect. Moreover, under Rule 144 of the Rules of Court, the Court may not apply the rules to actions pending before it if in its opinion their application would not be feasible or would work injustice, in which event, the former procedure shall apply. [16] The absence of a provision in Section 8 giving it prospective application only does not proscribe the prospective application thereof; nor does it imply that the Court intended the new rule to be given retroactive and prospective effect. If the statutory purpose is clear, the provisions of the law should be construed as is conducive to fairness and justice, and in harmony with the general spirit and policy of the rule. It should be construed so as not to defeat but to carry out such end or purpose.[17] A statute derives its vitality from the purpose for which it is approved. To construe it in a manner that disregards or defeats such purpose is to nullify or destroy the law.[18] In Cometa v. Court of Appeals,[19] this Court ruled that the spirit rather than the letter of the statute determines its construction; hence, a statute must be read according to its spirit or intent.[20] While we may not read into the law a purpose that is not there, we nevertheless have the right to read out of it the reason for its enactment. In doing so, we defer not to the letter that killeth but to the spirit that vivifieth, to give effect to the lawmakers will.[21] In this case, when the Court approved Section 8, it intended the new rule to be applied prospectively and not retroactively, for if the intention of the Court were otherwise, it would defeat the very purpose for which it was intended, namely, to give the State a period of two years from notice of the provisional dismissal of criminal cases with the express consent of the accused. It would be a denial of the States right to due process and a travesty of justice for the Court to apply the new rule retroactively in the present case as the respondent insists, considering that the criminal cases were provisionally dismissed by Judge Agnir, Jr. on March 29, 1999 before the new rule took effect on December 1, 2000. A retroactive application of the time-bar will result in

absurd, unjust and oppressive consequences to the State and to the victims of crimes and their heirs. Consider this scenario: the trial court (RTC) provisionally dismissed a criminal case with the express consent of the accused in 1997. The prosecution had the right to revive the case within the prescriptive period, under Article 90 of the Revised Penal Code, as amended. On December 1, 2000, the time-bar rule under Section 8 took effect, the prosecution was unable to revive the criminal case before then. If the time-bar fixed in Section 8 were to be applied retroactively, this would mean that the State would be barred from reviving the case for failure to comply with the said time-bar, which was yet to be approved by the Court three years after the provisional dismissal of the criminal case. In contrast, if the same case was dismissed provisionally in December 2000, the State had the right to revive the same within the time-bar. In fine, to so hold would imply that the State was presumed to foresee and anticipate that three years after 1997, the Court would approve and amend the RRCP. The State would thus be sanctioned for its failure to comply with a rule yet to be approved by the Court. It must be stressed that the institution and prosecution of criminal cases are governed by existing rules and not by rules yet to exist. It would be the apex of injustice to hold that Section 8 had a platonic or ideal existence before it was approved by the Court. The past cannot be erased by a capricious retroactive application of the new rule. In holding that the petitioners had until December 1, 2002 within which to revive the criminal cases provisionally dismissed by Judge Agnir, Jr. on March 29, 1999, this Court explained, thus:

The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year period commenced to run on March 31, 1999 when the public prosecutor received his copy of the resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the new rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q-9981689 on March 29, 1999. The new rule took effect on December 1, 2000. If the Court applied the new time-bar retroactively, the State would have only one year and three months or until March 31, 2001 within which to revive these criminal cases. The period is short of the two-year period fixed under the new rule. On the other hand, if the time limit is applied prospectively, the State would have two years from December 1, 2000 or until December 1, 2002 within which to revive the cases. This is in consonance with the intendment of the new rule in fixing the timebar and thus prevent injustice to the State and avoid absurd, unreasonable, oppressive, injurious, and wrongful results in the administration of justice. The period from April 1, 1999 to November 30, 1999 should be excluded in the computation of the two-year period because the rule prescribing it was not yet in effect at the time and the State could not be expected to comply with the time-bar. It
[22]

cannot even be argued that the State waived its right to revive the criminal cases against respondent or that it was negligent for not reviving them within the two-year period under the new rule. As the United States Supreme Court said, per Justice Felix Frankfurter, in Griffin v. People, 351 US 12 (1956): We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights The two-year period fixed in the new rule is for the benefit of both the State and the accused. It should not be emasculated and reduced by an inordinate retroactive application of the time-bar therein provided merely to benefit the accused. For to do so would cause an injustice of hardship to the State and adversely affect the administration of justice in general and of criminal laws in particular.
[23]

Further quoting Justice Felix Frankfurters opinion in Griffin v. People,[24] he said, it is much more conducive to laws self-respect to recognize candidly the considerations that give prospective content to a new pronouncement of law. That this is consonant with the spirit of our law and justified by those considerations of reason which should dominate the law has been luminously expounded by Mr. Justice Cardozo shortly before he came here and in an opinion which he wrote for the Court. Parenthetically, the respondent himself admitted in his motion for reconsideration that Judge Agnir, Jr. could not have been expected to comply with the notice requirement under the new rule when it yet had to exist:

99. Respondent submits that the records are still in the same state of inadequacy and incompletion. This however is not strange considering that Section 8, Rule 117 had not existed on March 29, 1999, when the criminal cases were dismissed, and then Judge Agnir did not have its text to guide his actions. How could the good judge have complied with the mandate of Section 8, Rule 117 when it yet had to exist?
[25]

Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined at the time of their passage. In that sense and to that extent, procedural laws are retroactive.[26] Criminal Cases Nos. Q-99-81679 to Q-9981689 had long been dismissed by Judge Agnir, Jr. before the new rule took effect on December 1, 2000. When the petitioners filed the Informations in Criminal Cases Nos. 01-101102 to 01-101112 on June 6, 2001, Criminal Cases Nos. Q-99-81679 and Q-9981689 had long since been terminated. The two-year bar in the new rule should not be reckoned from the March 29, 1999 dismissal of Criminal Cases Nos. Q-99-81679 to Q99-81689 but from December 1, 2000 when the new rule took effect. While it is true that the Court applied Section 8 of Rule 110[27] of the RRCP retroactively, it did so only to cases still pending with this Court and not to cases already terminated with finality. The records show that after the requisite preliminary investigation conducted by the petitioners in accordance with existing rules, eleven Informations in Criminal Cases

Nos. 01-101102 to 01-101112 were filed with the RTC on June 6, 2001, very well within the time-bar therefor. The respondent cannot argue that his right to due process and to a speedy disposition of the cases as enshrined in the Constitution had been violated.[28] The respondents plaint that he was being singled out by the prospective application of the new rule simply because before the Court issued its April 1, 2003 Resolution, he announced his candidacy for the presidency of the Republic for the 2004 elections has no factual basis whatsoever.[29] The bare and irrefutable fact is that it was in this case where the issue of the retroactive/prospective application of the new rule was first raised before the Court. The ruling of the Court in its April 1, 2003 Resolution and its ruling today would be the same, regardless of who the party or parties involved are, whether a senator of the Republic or an ordinary citizen. The respondents contention that the prospective application of the new rule would deny him due process and would violate the equal protection of laws is barren of merit. It proceeds from an erroneous assumption that the new rule was approved by the Court solely for his benefit, in derogation of the right of the State to due process. The new rule was approved by the Court to enhance the right of due process of both the State and the accused. The State is entitled to due process in criminal cases as much as the accused. Due process has never been and perhaps can never be precisely defined. It is not a technical conception with a fixed content unrelated to time, place and circumstances. The phrase expresses the requirement of fundamental fairness, a requisite whose meaning can be as opaque as its importance is lofty. [30] In determining what fundamental fairness consists of in a particular situation, relevant precedents must be considered and the interests that are at stake; private interests, as well as the interests of the government must be assessed. In this case, in holding that the new rule has prospective and not retroactive application, the Court took into consideration not only the interests of the respondent but all other accused, whatever their station in life may be. The interest of the State in the speedy, impartial and inexpensive disposition of criminal cases was likewise considered.

The Respondent Failed to Comply with the Essential Prerequisites of Section 8, Rule 117 of the Revised Rules of Criminal Procedure The respondent argues that the issue involved in the Court of Appeals is entirely different from the issue involved in the present recourse; hence, any admissions he made in the court below are not judicial admissions in this case. He asserts that the issue involved in the CA was whether or not he was placed in double jeopardy when he was charged with murder in Criminal Cases Nos. 01-101102 to 01-101112 despite the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689; whereas the issue in this Court is whether the prosecution of Criminal Cases Nos. 01-101102 to 01-101112 was

barred by Section 8, Rule 117 of the RRCP. The respondent avers that the proceedings in the appellate court are different from those in this Court. The respondent posits that this Court erred in giving considerable weight to the admissions he made in his pleadings and during the proceedings in the CA. He stresses that judicial admissions may only be used against a party if such admissions are (a) made in the course of the proceedings in the same case; and (b) made regarding a relevant fact, pursuant to Section 4, Rule 129 and Section 26, Rule 130 of the Rules of Evidence. He contends that contrary to the ruling of the Court, when he filed his motion for the judicial determination of probable cause in Criminal Cases Nos. Q-99-81679 to Q-99-81689, he thereby prayed for the dismissal of the said cases. His motion carried with it, at the very least, the prayer for the dismissal of the criminal cases. Absent a finding of probable cause, Judge Agnir, Jr. had no recourse but to dismiss the criminal cases. Moreover, the respondent avers that his motion included the general prayer for such other reliefs as may be equitable in the premises. The respondent also points out that the public prosecutor agreed to the averments in his motion as the latter did not even file any motion for the reconsideration of Judge Agnir, Jr.s order dismissing the cases. The respondent further contends that the Court is not a trier of facts. It has no means to ascertain or verify as true the contrasting claims of the parties on the factual issues, a function best left to the trial court as the trier of facts. He posits that there is a need for the case to be remanded to the RTC to enable him to present evidence on whether or not Judge Agnir, Jr. complied with the notice requirements of Section 8. Echoing the May 28, 2002 ruling of this Court, the respondent contends that it is not fair to expect the element of notice under Section 8 to be litigated before Judge Agnir, Jr., for the said rule was not yet in existence at the time he filed his motion for a determination of probable cause. The respondent avers that the requirement for notices to the offended parties under Section 8 is a formal and not an essential requisite. In criminal cases, the offended party is the State and the role of the private complainant is limited to the determination of the civil liability of the accused. According to the respondent, notice to the prosecution provides sufficient safeguard for the private complainant to recover on the civil liability of the accused based on the delicts; after all, the prosecution of the offense is under the control and direction of the public prosecutor. The contentions of the respondent have no merit. First. The issue posed by the respondent in the CA and in this Court are the same. To recall, in Civil Case No. 01-100933,[31] the respondent[32] sought injunctive relief from the RTC of Manila on his claim that in conducting a preliminary investigation in Criminal Cases Nos. 01-101102 to 01-101112, the petitioners thereby placed him in double jeopardy under Section 7, Rule 117 of the RRCP. [33] When the RTC denied his plea for injunctive relief, the respondent filed his petition for certiorari in the CA, again invoking his right against double jeopardy, praying that:

13. Inasmuch as the case subject of the preliminary investigation was dismissed for the reasons mentioned, there currently exists no complaint upon which a valid

investigation can be had in light of the clear provisions of Rule 110 which requires the existence of a sworn written statement charging a person with an offense as basis for the commencement of a preliminary investigation under Rule 112. For petitioner, the investigation covers exactly the same offenses over which he had been duly arraigned and a plea validly entered before the Sandiganbayan (in Criminal Cases Nos. 23047 to 57) before its remand to the QC RTC. Hence, to proceed therewith on similar charges will put him in jeopardy of being twice punished therefor (Article III, 21, Constitution).
[34]

The respondent (petitioner therein) contended that the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 by Judge Agnir, Jr. amounted to a judgment of acquittal; hence, he could no longer be charged and prosecuted anew for the same offense without violating his right against double jeopardy. However, the respondent filed a second amended petition wherein he invoked for the first time Section 8 of Rule 117 of the RRCP:

(e) the new criminal cases for Murder filed by respondents against petitioner and the other accused on June 6, 2001 (docketed as Criminal Cases Nos. 01-101102 to 01101112) and pending before respondent Judge Yadao (Annex B) is dismissible on its face as they involve exactly the same accused, facts, and offenses which had previously been dismissed by the QC RTC in Criminal Cases Nos. Q-99-81679 to 89 on March 29, 1999, hence, can no longer be revived two (2) years after such dismissal in accordance with the clear provisions of Section 8, Rule 117.
[35]

Indeed, the CA granted the respondents petition based on Section 8, Rule 117 of the RRCP. In this case, the respondent invoked the same rule and the Constitution. Thus, during the oral arguments in this Court, the respondent, through counsel, admitted that he was indeed invoking Section 8 anew and the provisions of the Constitution on double jeopardy:
JUSTICE PANGANIBAN: You are saying that Sen. Lacson can no longer be prosecuted forever for that crime, for the killing of the 11 in 1995? ATTY. FORTUN: That is my submission, Your Honor. JUSTICE PANGANIBAN: Let us see your reason for it? ATTY. FORTUN:[36] First, are you saying that double jeopardy applies or not? JUSTICE PANGANIBAN:[37]

Allow me to qualify the effects of double jeopardy occur with permanent dismissal that is my submission. ATTY. FORTUN:[38] No, no, I am not talking of the effects, I am talking of the doctrine, you are not invoking the doctrine of double jeopardy? ATTY. FORTUN: Your Honor, double jeopardy does not apply Section 8, 117 they are (interrupted) JUSTICE PANGANIBAN: That is right. ATTY. FORTUN: They are two different claims. JUSTICE PANGANIBAN: That is what I am trying to rule out so that we do not have to discuss it. ATTY. FORTUN: Very well, Your Honor. JUSTICE PANGANIBAN: You are not invoking double jeopardy? ATTY. FORTUN: As I mentioned we are saying that the effects of a permanent dismissal vest the effects (interrupted) JUSTICE PANGANIBAN: No, I am not talking of the effects, I am asking about the application, you are not asking the Court to apply the doctrine of double jeopardy to prevent a prosecution of Mr. Lacson? ATTY. FORTUN: Because the element of double jeopardy cannot apply 8, 117. JUSTICE PANGANIBAN: So, the answer is yes? ATTY. FORTUN: No, Your Honor, we were saying that precisely a permanent dismissal vests the rights of double jeopardy upon the accused who invokes it. JUSTICE PANGANIBAN: What you are saying is the effects, I am not asking about the effects, I will ask that later. ATTY. FORTUN:

They are two different (interrupted) JUSTICE PANGANIBAN: Later, I am asking about doctrines. Since you are not invoking the doctrine of double jeopardy you are resting your case win or lose, sink or sail on the application of 8,117? ATTY. FORTUN: On the constitutional right of the accused under Section 16 of Article 3 which is speedy disposition of cases which implemented 8,817, that is our arguments in this bar. JUSTICE PANGANIBAN: Are you not resting on 8,117? ATTY. FORTUN: That and the constitutional provision, Your Honor. JUSTICE PANGANIBAN: So, you are resting on 8,117? ATTY. FORTUN: Not exclusive, Your Honor. JUSTICE PANGANIBAN: And the Constitution? ATTY. FORTUN: The Constitution which gave life to 8,117. JUSTICE PANGANIBAN: To speedy disposition? ATTY. FORTUN: Yes, Your Honor. JUSTICE PANGANIBAN: Can a Court, let us see your theory then your theory rest on two provisions: first, the Rules of Court 8,117 and Second, the Constitution on speedy disposition? ATTY. FORTUN: Yes, Your Honor.[39]

Second. The respondents answers to the questions of Madame Justice Josefina Salonga during the hearing in the CA where he admitted, through counsel, that he gave no express conformity to the dismissal of the cases by Judge Agnir, Jr., were in relation to Section 8 of Rule 117 and not to Section 7 of Rule 117 on double jeopardy, thus:
JUSTICE SALONGA:

Do we get it from you that it is your stand that this is applicable to the case at bar? ATTY. FORTUN: It is my submission, that it is, Your Honor. In addition, of course, to my proposition that Mr. Lacson is covered by the rule on double jeopardy as well, because he had already been arraigned before the Sandiganbayan prior to the case being remanded to the RTC. JUSTICE SALONGA: You are referring to those cases which were dismissed by the RTC of Quezon City. ATTY. FORTUN: Yes, Your Honor. JUSTICE SALONGA: And it is your stand that the dismissal made by the Court was provisional in nature? ATTY. FORTUN: It was in that the accused did not ask for it. What they wanted at the onset was simply a judicial determination of probable cause for warrants of arrest issued. Then Judge Agnir, [Jr.] upon the presentation by the parties of their witnesses, particularly those who had withdrawn their affidavits, made one further conclusion that not only was this case lacking in probable cause for purposes of the issuance of an arrest warrant but also it did not justify proceeding to trial. JUSTICE SALONGA: And it is expressly provided under Section 8 that a case shall not be provisionally dismissed except [if] it is with the express conformity of the accused. ATTY. FORTUN: That is correct, Your Honor. JUSTICE SALONGA: And with notice to the offended party. ATTY. FORTUN: That is correct, Your Honor. JUSTICE SALONGA: Was there an express conformity on the part of the accused? ATTY. FORTUN: There was none, Your Honor. We were not asked to sign any order, or any statement which would normally be required by the Court on pre-trial or on other matters, including other provisional dismissal. My very limited practice in criminal courts, Your Honor, had taught me that a judge must be very careful on this matter

of provisional dismissal. In fact, they ask the accused to come forward, and the judge himself or herself explains the implications of a provisional dismissal.[40]

The respondent, through counsel, even admitted that despite his plea for equitable relief in his motion for a judicial determination of probable cause in the RTC, he did not agree to a provisional dismissal of the cases. The respondent insisted that the only relief he prayed for before Judge Agnir, Jr. was that warrants for his arrest be withheld pending a finding of probable cause. He asserted that the judge did not even require him to agree to a provisional dismissal of the cases:
JUSTICE ROSARIO: You were present during the proceedings? ATTY. FORTUN: Yes, Your Honor. JUSTICE ROSARIO: You represented the petitioner in this case? ATTY. FORTUN: That is correct, Your Honor. And there was nothing of that sort which the good Judge Agnir, [Jr.] who is most knowledgeable in criminal law, had done in respect of provisional dismissal or the matter of Mr. Lacson agreeing to the provisional dismissal of the case. JUSTICE GUERRERO: Now, you filed a motion, the other accused then filed a motion for a judicial determination of probable cause? ATTY. FORTUN: Yes, Your Honor. JUSTICE GUERRERO: Did you make any alternative prayer in your motion that if there is no probable cause what should the Court do? ATTY. FORTUN: That the arrest warrants only be withheld. That was the only prayer that we asked. In fact, I have a copy of that particular motion, and if I may read my prayer before the Court, it said: Wherefore, it is respectfully prayed that (1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be conducted, and for this purpose, an order be issued directing the prosecution to present private complainants and their witnesses at the scheduled hearing for that purpose; and (2) the warrants for the arrest of the accused be withheld, or, if issued, recalled in the meantime until resolution of this incident. JUSTICE GUERRERO: There is no general prayer for any further relief? ATTY. FORTUN:

There is but it simply says other equitable reliefs are prayed for. JUSTICE GUERRERO: Dont you surmise Judge Agnir, [Jr.] now a member of this Court, precisely addressed your prayer for just and equitable relief to dismiss the case because what would be the net effect of a situation where there is no warrant of arrest being issued without dismissing the case? ATTY. FORTUN: Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is we did not agree to the provisional dismissal, neither were we asked to sign any assent to the provisional dismissal. JUSTICE GUERRERO: If you did not agree to the provisional dismissal, did you not file any motion for reconsideration of the order of Judge Agnir, [Jr.] that the case should be dismissed? ATTY. FORTUN: I did not, Your Honor, because I knew fully well at that time that my client had already been arraigned, and the arraignment was valid as far as I was concerned. So, the dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did not take any further step in addition to rocking the boat or clarifying the matter further because it probably could prejudice the interest of my client. JUSTICE GUERRERO: Continue.[41]

In his memorandum, in lieu of the oral argument filed with the Court of Appeals, the respondent declared in no uncertain terms that:

Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without jurisdiction over the cases. The records were remanded to the QC RTC. Upon raffle, the case was assigned to Branch 91. Petitioner and the others promptly filed a motion for judicial determination of probable cause (Annex B). He asked that warrants for his arrest not be issued. He did not move for the dismissal of the Informations, contrary to respondent OSGs claim.
[42]

Section 4, Rule 129 of the Revised Rules of Court reads:

Sec. 4. Judicial admissions. An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.

A judicial admission is a formal statement made either by a party or his or her attorney, in the course of judicial proceeding which removes an admitted fact from the field of controversy. It is a voluntary concession of fact by a party or a partys attorney during such judicial proceedings, including admissions in pleadings made by a party.[43] It may occur at any point during the litigation process. An admission in open court is a judicial admission.[44] A judicial admission binds the client even if made by his counsel.[45] As declared by this Court:

... [I]n fact, judicial admissions are frequently those of counsel or of attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made ... for the purpose of dispensing with proof of some fact, ... they bind the client, whether made during, or even after the trial.
[46]

When the respondent admitted that he did not move for the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 in his motion for a judicial determination of probable cause, and that he did not give his express consent to the provisional dismissal of the said cases, he in fact admitted that one of the essential requisites of Section 8, Rule 117 was absent. The respondents contention that his admissions made in his pleadings and during the hearing in the CA cannot be used in the present case as they were made in the course of a different proceeding does not hold water. It should be borne in mind that the proceedings before the Court was by way of an appeal under Rule 45 of the Rules of Court, as amended, from the proceedings in the CA; as such, the present recourse is but a mere continuation of the proceedings in the appellate court. This is not a new trial, but a review of proceedings which commenced from the trial court, which later passed through the CA. The respondent is bound by the judicial admissions he made in the CA, and such admissions so hold him in the proceedings before this Court. As categorically stated in Habecker v. Clark Equipment Company:[47]

... [J]udicial admissions on issues of fact, including those made by counsel on behalf of a client during a trial, are binding for the purpose of the case ... including appeals.
While it may be true that the trial court may provisionally dismiss a criminal case if it finds no probable cause, absent the express consent of the accused to such provisional dismissal, the latter cannot thereafter invoke Section 8 to bar a revival thereof. Neither may the accused do so simply because the public prosecutor did not object to a motion of the accused for a judicial determination of probable cause or file a motion for the reconsideration of the order of dismissal of the case. Even a cursory reading of the respondents motion for a judicial determination of probable cause will show that it contained no allegation that there was no probable cause for the issuance of a warrant for the respondents arrest as a prayer for the dismissal of the cases. The respondent was only asking the court to determine whether or not there was probable cause for the issuance of a warrant for his arrest and in the meantime, to hold in abeyance the issuance of the said warrant. Case law has it that a prayer for equitable relief is of no

avail, unless the petition states facts which will authorize the court to grant such relief.[48] A court cannot set itself in motion, nor has it power to decide questions except as presented by the parties in their pleadings. Anything that is resolved or decided beyond them is coram non judice and void.[49] Third. There is no need for the Court to remand the instant case to the trial court to enable the respondent to adduce post facto evidence that the requisite notices under Section 8 had been complied with by Judge Agnir, Jr. The Court has thoroughly examined the voluminous records from the Sandiganbayan and the RTC [50] and found no proof that the requisite notices were even served on all the heirs of the victims. The respondent himself admitted that, as held by this Court, in its May 28, 2002 Resolution, Judge Agnir, Jr. could not have complied with the mandate under Section 8 because said rule had yet to exist.[51] One final matter. The records show that Criminal Cases Nos. 01-101102 to 01101112 were assigned, through the customary raffle of cases, to Branch 81 of the RTC of Quezon City, the same branch which dismissed Criminal Cases Nos. 99-81679 to 9981689.[52] In the April 1, 2003 Resolution of the Court, the Presiding Judge of Branch 81 of the RTC of Quezon City was directed to try and decide Criminal Cases Nos. 01101102 to 01-101112 with reasonable dispatch. The Court notes, however, that in Administrative Order No. 104-96, it designated six branches of the RTC of Quezon City[53] as special courts, exclusively to try and decide heinous crimes under Rep. Act No. 7659. Since the accused in the said cases are charged with murder, which under Rep. Act No. 7659, is classified as a heinous crime, the above cases should be consolidated and re-raffled by the Executive Judge of the RTC of Quezon City to a branch thereof designated as a special court, exclusively to try and decide heinous crimes. IN LIGHT OF ALL THE FOREGOING, respondent Panfilo M. Lacsons Omnibus Motion and Motion to Set for Oral Arguments are DENIED. The respondents Motion for Reconsideration and its Supplement are DENIED WITH FINALITY. The Executive Judge of the Regional Trial Court of Quezon City is hereby DIRECTED to CONSOLIDATE Criminal Cases Nos. 01-101102 to 01-101112 and to RE-RAFFLE the same with dispatch to one of the branches of the Regional Trial Court of Quezon City designated as a special court, exclusively to try and decide heinous crimes. SO ORDERED. Davide, Jr., C.J., Bellosillo, Panganiban, Quisumbing, Austria-Martinez, CarpioMorales, and Azcuna, JJ., concur. Puno, J., maintains his dissent. Vitug, J., maintains his dissent and reiterate his opinion on the Courts resolution of 28 May 2002. Ynares-Santiago, J., see separate dissenting opinion. Sandoval-Gutierrez, J., see dissenting opinion. Carpio, J., no part. Corona, J., on leave. Tinga, J., no part.

[1]

Rollo, Vol. III, pp. 1563-1570. Id. at 1391-1491. Id. at 1513-1529. Id. at 1493. Rules on Who Shall Resolve Motions for Reconsideration in Cases Assigned to the Divisions of the Court, effective April 1, 2000. Rollo, Vol. II, p. 1179. Rollo, Vol. III, p. 1496. Id. at 1501. February 18, 2002 should read February 19, 2002. Id. at 1500-1501. Limpin, Jr. v. Intermediate Appellate Court, 161 SCRA 83 (1988). Rollo, Vol. II, p. 1342. Stovall v. Denno, 18 L.Ed.2d. 1199 (1967). United States Fidelity & Guarantee Company v. United States, 52 L.Ed. 804 (1908). Great Northern Railway Company v. Sunburst Oil & Refining Company, 77 L.Ed. 360 (1932). Rule 144, Rules of Court, as amended:

[2]

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

[13]

[14]

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[16]

These rules shall take effect on January 1, 1964. They shall govern all cases brought after they take effect, and also all further proceedings in cases then pending, except to the extent that in the opinion of the court their application would not be feasible or would work injustice, in which event the former procedure shall apply.
[17]

Age-Herald Publishing Co. v. Huddleston, 92 So. 193 (1921). Pilipinas Kao, Inc. v. Court of Appeals, 372 SCRA 548 (2001). 351 SCRA 294 (2001). Id. at 304. Id. November 30, 1999 should read November 30, 2000. Resolution dated April 1, 2003, pp. 25-26; Rollo, Vol. II, pp. 1343-1344. Supra. Rollo, Vol. III, p. 1448. Tan v. Court of Appeals, G.R. No. 136368, January 16, 2002. SEC. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. U.S. v. Panczko, 367 F. 2d. 737 (1966).

[18]

[19]

[20]

[21]

[22]

[23]

[24]

[25]

[26]

[27]

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[29]

In its April 29, 2003 Resolution, the respondents allusion of loud whispers caused by a suspicion that this Court or any member of this Court had been manipulated by politics in this government was rejected by the Court, thus:

The respondents allusion of loud whispers caused by a suspicion that this Court or any member of the Court had been manipulated by politics in this government when it resolved to set aside its 28 May 2002 Resolution is downright irresponsible. Not too long ago, a distinguished member of the Court said: Those who wear the black robes are enrolled in a noble mission; become different persons; forfeit their past activities, friends and even relatives; and devote full time, attention and effort to the rather reclusive and exclusive world of decision-making. Quoting Rufus Choate, in part, a judge or justice in administering justice shall know nothing about the parties, everything about the case. He shall do everything for justice; nothing for himself; nothing for his friend; nothing for his patron; nothing for his sovereign. All members of the Court acted on and resolved petitioners motion for reconsideration as well as respondents motion to recuse Justice Callejo, Sr. in light of their respective study of the records and the relevant laws and rules after due deliberation. (Rollo, Vol. III, p. 1499).
[30]

Lassite v. Department of Social Services, 68 L.Ed.2d. 640 (1981). Entitled and docketed as Lacson v. Department of Justice, Civil Case No. 01-100933 for prohibition with a prayer for a temporary restraining order. (CA Rollo, p. 29). There were 27 accused in Criminal Cases Nos. Q-99-81679 to Q-99-81689. Except for Inspector Manuel Alvarez, the said accused were also charged in Criminal Cases Nos. 01-101102 to 01101112. Only the respondent filed his petition in said case. SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

[31]

[32]

[33]

However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances: (a) the greater offense developed due to supervening facts arising from the same act or omission constituting the former charge; (b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or (c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in Section 1(f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.
[34]

CA Rollo, pp. 8-9. (Underscoring supplied). Id. at 110. This should read Justice Panganiban. This should read Atty. Fortun.

[35]

[36]

[37]

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This should read Justice Panganiban. TSN, 19 February 2002, pp. 220-225. (Underscoring supplied). TSN (CA Rollo), 31 July 2001, pp. 12-14. (Underscoring supplied). Ibid., pp. 15-18. (Emphasis ours). Memorandum of Petitioner; CA Rollo, p. 378. Am Jur, Evidence, 770. Ibid. 771. Glick v. White Motor Company, 458 F.2d. 1287 (1972). People v. Hernandez, 260 SCRA 25 (1996), citing 31 C.J.S. 537. 797 F.Supp. 381 (1992), citing Glick v. White Motor Co., supra. Branz v. Hylton, 265 N.W. 16 (1936). 15 Ruling Case Law, 854 and 328. The records from the Sandiganbayan and the RTC which were elevated to this Court consisted of 11 volumes plus 11 additional folders per Letter dated April 26, 2002. Motion for Reconsideration, p. 33; Rollo, Vol. III, p. 1423; Consolidated Reply, p. 28. Rollo, Vol. I, p. 465. Branches 76, 86, 95, 102, 103 and 219.

[39]

[40]

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[53]

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13005 October 10, 1917

THE UNITED STATES, plaintiff-appellee, vs. AH SING, defendant-appellant. Antonio Sanz for appellant. Acting Attorney-General Paredes for appellee.

MALCOLM, J.: This is an appeal from a judgment of the Court of First Instance of Cebu finding the defendant guilty of a violation of section 4 of Act No. 2381 (the Opium Law), and sentencing him to two years imprisonment, to pay a fine of P300 or to suffer subsidiary imprisonment in case of insolvency, and to pay the costs.

The following facts are fully proven: The defendant is a subject of China employed as a fireman on the steamship Shun Chang. The Shun Chang is a foreign steamer which arrived at the port of Cebu on April 25, 1917, after a voyage direct from the port of Saigon. The defendant bought eight cans of opium in Saigon, brought them on board the steamship Shun Chang, and had them in his possession during the trip from Saigon to Cebu. When the steamer anchored in the port of Cebu on April 25, 1917, the authorities on making a search found the eight cans of opium above mentioned hidden in the ashes below the boiler of the steamer's engine. The defendant confessed that he was the owner of this opium, and that he had purchased it in Saigon. He did not confess, however, as to his purpose in buying the opium. He did not say that it was his intention to import the prohibited drug into the Philippine Islands. No other evidence direct or indirect, to show that the intention of the accused was to import illegally this opium into the Philippine Islands, was introduced. Has the crime of illegal importation of opium into the Philippine Islands been proven? Two decisions of this Court are cited in the judgment of the trial court, but with the intimation that there exists inconsistently between the doctrines laid down in the two cases. However, neither decision is directly a precedent on the facts before us. In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion handed down by the Chief Justice, it is found That, although the mere possession of a thing of prohibited use in these Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a crime triable by the courts of this country, on account of such vessel being considered as an extension of its own nationality, the same rule does no apply when the article, whose use is prohibited within the Philippine Islands, in the present case a can of opium, is landed from the vessel upon Philippine soil, thus committing an open violation of the laws of the land, with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, only the court established in the said place itself has competent jurisdiction, in the absence of an agreement under an international treaty.
1aw phil.net

A marked difference between the facts in the Look Chaw case and the facts in the present instance is readily observable. In the Look Chaw case, the charge case the illegal possession and sale of opium in the present case the charge as illegal importation of opium; in the Look Chaw case the foreign vessel was in transit in the present case the foreign vessel was not in transit; in the Look Chaw case the opium was landed from the vessel upon Philippine soil in the present case of United States vs. Jose ([1916], 34 Phil., 840), the main point, and the one on which resolution turned, was that in a prosecution based on the illegal importation of opium or other prohibited drug, the Government must prove, or offer evidence sufficient to raise a presumption, that the vessel from which the drug is discharged came into Philippine waters from a foreign country with the drug on board. In the Jose case, the defendants were acquitted because it was not proved that the opium was imported from a foreign country; in the present case there is no question but what the opium came from Saigon to Cebu. However, in the opinion in the Jose case, we find the following which may be obiter dicta, but which at least is interesting as showing the view of the writer of the opinion: The importation was complete, to say the least, when the ship carrying it anchored in Subic Bay. It was not necessary that the opium discharged or that it be taken from the ship. It was sufficient that the opium was brought into the waters of the Philippine Islands on a boat destined for a Philippine port and which subsequently anchored in a port of the Philippine Islands with intent to discharge its cargo.

Resolving whatever doubt was exist as to the authority of the views just quoted, we return to an examination of the applicable provisions of the law. It is to be noted that section 4 of Act No. 2381 begins, "Any person who shall unlawfully import or bring any prohibited drug into the Philippine Islands." "Import" and "bring" are synonymous terms. The Federal Courts of the United States have held that the mere act of going into a port, without breaking bulk, is prima facie evidence of importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the importation is not the making entry of goods at the custom house, but merely the bringing them into port; and the importation is complete before entry of the Custom House. (U. S. vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the Opium Law, we expressly hold that any person unlawfully imports or brings any prohibited drug into the Philippine Islands, when the prohibited drug is found under this person's control on a vessel which has come direct from a foreign country and is within the jurisdictional limits of the Philippine Islands. In such case, a person is guilty of illegal importation of the drug unless contrary circumstances exist or the defense proves otherwise. Applied to the facts herein, it would be absurb to think that the accused was merely carrying opium back and forth between Saigon and Cebu for the mere pleasure of so doing. It would likewise be impossible to conceive that the accused needed so large an amount of opium for his personal use. No better explanation being possible, the logical deduction is that the defendant intended this opium to be brought into the Philippine Islands. We accordingly find that there was illegal importation of opium from a foreign country into the Philippine Islands. To anticipate any possible misunderstanding, let it be said that these statements do not relate to foreign vessels in transit, a situation not present. The defendant and appellant, having been proved guilty beyond a reasonable doubt as charged and the sentence of the trial court being within the limits provided by law, it results that the judgment must be affirmed with the costs of this instance against the appellant. So ordered. Arellano, C.J., Johnson, Carson, Araullo and Street, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-18924 October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant, vs. WONG CHENG (alias WONG CHUN), defendant-appellee. Attorney-General Villa-Real for appellant. Eduardo Gutierrez Repide for appellee. ROMUALDEZ, J.: In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of Manila, sustaining the demurrer presented by the defendant to the information that initiated this case and in which the appellee is accused of having illegally smoked opium, aboard the merchant vessel Changsa of English nationality while said vessel was anchored in Manila Bay two and a half miles from the shores of the city.

The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the case. The question that presents itself for our consideration is whether such ruling is erroneous or not; and it will or will not be erroneous according as said court has or has no jurisdiction over said offense. The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one herein involved, committed aboard merchant vessels anchored in our jurisdiction waters.
1awph!l.net

There are two fundamental rules on this particular matter in connection with International Law; to wit, the French rule, according to which crimes committed aboard a foreign merchant vessels should not be prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless their commission affects the peace and security of the territory; and the English rule, based on the territorial principle and followed in the United States, according to which, crimes perpetrated under such circumstances are in general triable in the courts of the country within territory they were committed. Of this two rules, it is the last one that obtains in this jurisdiction, because at present the theories and jurisprudence prevailing in the United States on this matter are authority in the Philippines which is now a territory of the United States. In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice Marshall said: . . . When merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. . . . In United States vs. Bull (15 Phil., 7), this court held: . . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on the high seas or within the territorial waters of any other country, but when she came within three miles of a line drawn from the headlands, which embrace the entrance to Manila Bay, she was within territorial waters, and a new set of principles became applicable. (Wheaton, International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.; Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial sovereign subject to such limitations as have been conceded by that sovereignty through the proper political agency. . . . It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of the Common Jail (120 U.., 1), wherein it was said that: . . . The principle which governs the whole matter is this: Disorder which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction. It may not be easy at all times to determine which of the two jurisdictions a particular act of disorder belongs. Much will undoubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in the regular way the consul has no right to interfere to prevent it.

Hence in United States vs. Look Chaw (18 Phil., 573), this court held that: Although the mere possession of an article of prohibited use in the Philippine Islands, aboard a foreign vessel in transit in any local port, does not, as a general rule, constitute a crime triable by the courts of the Islands, such vessels being considered as an extension of its own nationality, the same rule does not apply when the article, the use of which is prohibited in the Islands, is landed from the vessels upon Philippine soil; in such a case an open violation of the laws of the land is committed with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, no court other than that established in the said place has jurisdiction of the offense, in the absence of an agreement under an international treaty. As to whether the United States has ever consented by treaty or otherwise to renouncing such jurisdiction or a part thereof, we find nothing to this effect so far as England is concerned, to which nation the ship where the crime in question was committed belongs. Besides, in his work "Treaties, Conventions, etc.," volume 1, page 625, Malloy says the following: There shall be between the territories of the United States of America, and all the territories of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two countries, respectively, shall have liberty freely and securely to come with their ships and cargoes to all such places, ports and rivers, in the territories aforesaid, to which other foreigners are permitted to come, to enter into the same, and to remain and reside in any parts of the said territories, respectively; also to hire and occupy houses and warehouses for the purposes of their commerce; and, generally, the merchants and traders of each nation respectively shall enjoy the most complete protection and security for their commerce, but subject always to the laws and statutes of the two countries, respectively. (Art. 1, Commerce and Navigation Convention.) We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court not triable by or courts, because it being the primary object of our Opium Law to protect the inhabitants of the Philippines against the disastrous effects entailed by the use of this drug, its mere possession in such a ship, without being used in our territory, does not being about in the said territory those effects that our statute contemplates avoiding. Hence such a mere possession is not considered a disturbance of the public order. But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly a breach of the public order here established, because it causes such drug to produce its pernicious effects within our territory. It seriously contravenes the purpose that our Legislature has in mind in enacting the aforesaid repressive statute. Moreover, as the Attorney-General aptly observes: . . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the port of Manila in open defiance of the local authorities, who are impotent to lay hands on him, is simply subversive of public order. It requires no unusual stretch of the imagination to conceive that a foreign ship may come into the port of Manila and allow or solicit Chinese residents to smoke opium on board. The order appealed from is revoked and the cause ordered remanded to the court of origin for further proceedings in accordance with law, without special findings as to costs. So ordered. Araullo, C.J., Street, Malcolm, Avancea, Villamor, Ostrand and Johns, JJ., concur.
EN BANC

G.R. No. L-5887 December 16, 1910 THE UNITED STATES, Plaintiff-Appellee , vs. LOOK CHAW (alias LUK CHIU), Defendant-Appellant.

ARELLANO, C. J.:

chanrobles vi rtual law lib rary

The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated that he "carried, kept, possessed and had in his possession and control, 96 kilogrammes of opium," and that "he had been surprised in the act of selling 1,000 pesos worth prepared opium."
cha nrob les vi rtua l law lib ra ry

The defense presented a demurrer based on two grounds, the second of which was the more than one crime was charged in the complaint. The demurrer was sustained, as the court found that the complaint contained two charges, one, for the unlawful possession of opium, and the other, for the unlawful sale of opium, and, consequence of that ruling, it ordered that the fiscal should separated one charge from the other and file a complaint for each violation; this, the fiscal did, and this cause concerns only the unlawful possession of opium. It is registered as No. 375, in the Court of First Instance of Cebu, and as No. 5887 on the general docket of this court.
chanro blesvi rtua lawlib rary cha nrob les vi rtua l law lib rary

The facts of the case are contained in the following finding of the trial court: The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present month (stated as August 19, 1909), several persons, among them Messrs. Jacks and Milliron, chief of the department of the port of Cebu and internal-revenue agent of Cebu, respectively, went abroad the steamship Erroll to inspect and search its cargo, and found, first in a cabin near the saloon, one sack (Exhibit A) and afterwards in the hold, another sack (Exhibit B). The sack referred to as Exhibit A contained 49 cans of opium, and the other, Exhibit B, the larger sack, also contained several cans of the same substance. The hold, in which the sack mentioned in Exhibit B was found, was under the defendant's control, who moreover, freely and of his own will and accord admitted that this sack, as well as the other referred to in Exhibit B and found in the cabin, belonged to him. The said defendant also stated, freely and voluntarily, that he had bought these sacks of opium, in Hongkong with the intention of selling them as contraband in Mexico or Vera Cruz, and that, as his hold had already been searched several times for opium, he ordered two other Chinamen to keep the sack. Exhibit A. It is to be taken into account that the two sacks of opium, designated as Exhibits A and B, properly constitute the corpus delicti. Moreover, another lot of four cans of opium, marked, as Exhibit C, was the subject matter of investigation at the trial, and with respect to which the chief of the department of the port of Cebu testified that they were found in the part of the ship where the firemen habitually sleep, and that they were delivered to the first officer of the ship to be returned to the said firemen after the vessel should have left the Philippines, because the firemen and crew of foreign vessels, pursuant to the instructions he had from the Manila custom-house, were permitted to retain certain amounts of opium, always provided it should not be taken shore.
c hanroblesv irt ualawli bra ry c hanro bles vi rtua l law li bra ry

And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as evidence in this cause. With regard to this the internal-revenue agent testified as follows: FISCAL. What is it?
chanrobles vi rt ual law li bra ry

WITNESS. It is a can opium which was bought from the defendant by a secret-service agent and taken to the office of the governor to prove that the accused had opium in his possession to sell. On motion by the defense, the court ruled that this answer might be stricken out "because it refers to a sale." But, with respect to this answer, the chief of the department of customs had already given this testimony, to wit:

FISCAL. Who asked you to search the vessel?

chanro bles vi rtua l law li bra ry

WITNESS. The internal-revenue agent came to my office and said that a party brought him a sample of opium and that the same party knew that there was more opium on board the steamer, and the agent asked that the vessel be searched. The defense moved that this testimony be rejected, on the ground of its being hearsay evidence, and the court only ordered that the part thereof "that there was more opium, on board the vessel" be stricken out.
chanroblesv irt ualawli bra ry c hanro bles vi rt ual law li bra ry

The defense, to abbreviate proceedings, admitted that the receptacles mentioned as Exhibits A, B, and C, contained opium and were found on board the steamship Erroll, a vessel of English nationality, and that it was true that the defendant stated that these sacks of opium were his and that he had them in his possession.
chanrob lesvi rtua lawlib rary chan rob les vi rtual law lib rary

According to the testimony of the internal-revenue agent, the defendant stated to him, in the presence of the provincial fiscal, of a Chinese interpreter (who afterwards was not needed, because the defendant spoke English), the warden of the jail, and four guards, that the opium seized in the vessel had been bought by him in Hongkong, at three pesos for each round can and five pesos for each one of the others, for the purpose of selling it, as contraband, in Mexico and Puerto de Vera Cruz; that on the 15th the vessel arrived at Cebu, and on the same day he sold opium; that he had tried to sell opium for P16 a can; that he had a contract to sell an amount of the value of about P500; that the opium found in the room of the other two Chinamen prosecuted in another cause, was his, and that he had left it in their stateroom to avoid its being found in his room, which had already been searched many times; and that, according to the defendant, the contents of the large sack was 80 cans of opium, and of the small one, 49, and the total number, 129.
chan roble svirtualawl ibra ry chan roble s virtual law l ibra ry

It was established that the steamship Erroll was of English nationality, that it came from Hongkong, and that it was bound for Mexico, via the call ports of Manila and Cebu.
chan roblesv irtualawl ibra ry c han robles v irt ual law l ibra ry

The defense moved for a dismissal of the case, on the grounds that the court had no jurisdiction to try the same and the facts concerned therein did not constitute a crime. The fiscal, at the conclusion of his argument, asked that the maximum penalty of the law be imposed upon the defendant, in view of the considerable amount of opium seized. The court ruled that it did not lack jurisdiction, inasmuch as the crime had been committed within its district, on the wharf of Cebu.
c hanro blesvi rt ualawlib ra ry c hanro bles vi rtua l law lib ra ry

The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000, with additional subsidiary imprisonment in case of insolvency, though not to exceed one third of the principal penalty, and to the payment of the costs. It further ordered the confiscation, in favor of the Insular Government, of the exhibits presented in the case, and that, in the event of an appeal being taken or a bond given, or when the sentenced should have been served, the defendant be not released from custody, but turned over to the customs authorities for the purpose of the fulfillment of the existing laws on immigration.
chanroble svi rtualaw lib rary chan roble s virtual law lib rary

From this judgment, the defendant appealed to this court.

chanro blesvi rt ualawlib ra ry

cha nro bles vi rtua l law lib ra ry

The appeal having been heard, together with the allegations made therein by the parties, it is found: That, although the mere possession of a thing of prohibited use in these Islands, aboard a foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a crime triable by the courts of this country, on account of such vessel being considered as an extension of its own nationality, the same rule does not apply when the article, whose use is prohibited within the Philippine Islands, in the present case a can of opium, is landed from the vessel upon Philippine soil, thus committing an open violation of the laws of the land, with respect to which, as it is a violation of the penal law in force at the place of the commission of the crime, only the court established in that said place itself had competent jurisdiction, in the absence of an agreement under an international treaty.
chanrob lesvi rtualaw lib rary chan roble s virtual law lib rary

It is also found: That, even admitting that the quantity of the drug seized, the subject matter of the present case, was considerable, it does not appear that, on such account, the two penalties fixed by the law on the subject, should be imposed in the maximum degree.
chanrob lesvi rtualaw lib rary chan roble s virtual law lib rary

Therefore, reducing the imprisonment and the fine imposed to six months and P1,000, respectively, we affirm in all other respects the judgment appealed from, with the costs of this instance against the appellant. So ordered.
chanroblesvi rt ualawlib ra ry cha nro ble s virt ual law li bra ry

Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.

U.S. Supreme Court

Powell v. Texas, 392 U.S. 514 (1968)
Powell v. Texas No. 405 Argued March 7, 1968 Decided June 17, 1968 392 U.S. 514 APPEAL FROM THE COUNTY COURT AT LAW No. 1 OF TRAVIS COUNTY, TEXAS Syllabus Appellant was arrested and charged with being found in a state of intoxication in a public place, in violation of Art. 477 of the Texas Penal Code. He was tried in the Corporation Court of Austin, and found guilty. He appealed to the County Court of Travis County, and, after a trial de novo, he was again found guilty. That court made the following "findings of fact": (1) chronic alcoholism is a disease which destroys the afflicted person's willpower to resist the constant, excessive use of alcohol, (2) a chronic alcoholic does not appear in public by his own volition, but under a compulsion symptomatic of the disease of chronic alcoholism, and (3) appellant is a chronic alcoholic who is afflicted by the disease of chronic alcoholism; but ruled as a matter of law that chronic alcoholism was not a defense to the charge. The principal testimony was that of a psychiatrist, who testified that appellant, a man with a long history of arrests for drunkenness, was a "chronic alcoholic" and was subject to a "compulsion" which was "not completely overpowering," but which was "an exceedingly strong influence."

Held: The judgment is affirmed. Pp. 392 U. S. 517-554. MR. JUSTICE MARSHALL, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE HARLAN, concluded that: 1. The lower court's "findings of fact" were not such in any recognizable, traditional sense, but were merely premises of a syllogism designed to bring this case within the scope of Robinson v. California, 370 U. S. 660 (1962). P. 392 U. S. 521. 2. The record here is utterly inadequate to permit the informed adjudication needed to support an important and wide-ranging new constitutional principle. Pp. 392 U. S. 521522. 3. There is no agreement among medical experts as to what it means to say that "alcoholism" is a "disease," or upon the "manifestations of alcoholism," or on the nature of a "compulsion." Pp. 392 U. S. 522-526. 4. Faced with the reality that there is no known generally effective method of treatment or adequate facilities or manpower Page 392 U. S. 515 for a full-scale attack on the enormous problem of alcoholics, it cannot be asserted that the use of the criminal process to deal with the public aspects of problem drinking can never be defended as rational. Pp. 392 U. S. 526-530. 5. Appellant's conviction on the record in this case does not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. Pp. 392 U. S. 531-537. (a) Appellant was convicted not for being a chronic alcoholic, but for being in public while drunk on a particular occasion, and thus, as distinguished from Robinson v. California, supra, was not being punished for a mere status. P. 392 U. S. 532. (b) It cannot be concluded, on this record and the current state of medical knowledge, that appellant suffers from such an irresistible compulsion to drink and to get drunk in public that he cannot control his performance of these acts, and thus cannot be deterred from public intoxication. In any event, this Court has never articulated a general constitutional doctrine of mens rea, as the development of the doctrine and its adjustment to changing conditions has been thought to be the province of the States. Pp. 392 U. S. 535-536. MR. JUSTICE BLACK, joined by MR. JUSTICE HARLAN, concluded:

1. Public drunkenness, which has been a crime throughout our history, is an offense in every State, and this Court certainly cannot strike down a State's criminal law because of the heavy burden of enforcing it. P. 392 U. S. 538. 2. Criminal punishment provides some form of treatment, protects alcoholics from causing harm or being harmed by removing them from the streets, and serves some deterrent functions, and States should not be barred from using the criminal process in attempting to cope with the problem. Pp. 392 U. S. 538-540. 3. Medical decisions based on clinical problems of diagnosis and treatment bear no necessary correspondence to the legal decision whether the overall objectives of criminal law can be furthered by imposing punishment, and States should not be constitutionally required to inquire as to what part of a defendant's personality is responsible for his actions and to excuse anyone whose action was the result of a "compulsion." Pp. 392 U. S. 540-541. 4. Crimes which require the State to prove that the defendant actually committed some proscribed act do not come within the scope of Robinson v. California, supra, which is properly limited to pure status crimes. Pp. 392 U. S. 541-544. Page 392 U. S. 516 5. Appellant's argument that it is cruel and unusual to punish a person who is not morally blameworthy goes beyond the Eighth Amendment's limits on the use of criminal sanctions, and would create confusion and uncertainty in areas of criminal law where our understanding is not complete. Pp. 392 U. S. 544-546. 6. Appellant's proposed constitutional rule is not only revolutionary, but it departs from the premise that experience in making local laws by local people is the safest guide for our Nation to follow. Pp. 392 U. S. 547-548. MR. JUSTICE WHITE concluded: While Robinson v. California, supra, would support the view that a chronic alcoholic with an irresistible urge to consume alcohol should not be punishable for drinking or being drunk, appellant's conviction was for the different crime of being drunk in a public place, and though appellant showed that he was to some degree compelled to drink and that he was drunk at the time of his arrest, he made no showing that he was unable to stay off the streets at that time. Pp. 392 U. S. 548-554.

MR. JUSTICE MARSHALL announced the judgment of the Court and delivered an opinion in which THE CHIEF Page 392 U. S. 517 JUSTICE, MR. JUSTICE BLACK, and MR. JUSTICE HARLAN join. In late December, 1966, appellant was arrested and charged with being found in a state of intoxication in a public place, in violation of Texas Penal Code, Art. 477 (1952), which reads as follows: "Whoever shall get drunk or be found in a state of intoxication in any public place, or at any private house except his own, shall be fined not exceeding one hundred dollars." Appellant was tried in the Corporation Court of Austin, Texas, found guilty, and fined $20. He appealed to the County Court at Law No. 1 of Travis County, Texas, where a trial de novo was held. His counsel urged that appellant was "afflicted with the disease of chronic alcoholism," that "his appearance in public [while drunk was] . . . not of his own volition," and, therefore, that to punish him criminally for that conduct would be cruel and unusual, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. The trial judge in the county court, sitting without a jury, made certain findings of fact,infra at 392 U. S. 521, but ruled as a matter of law that chronic alcoholism was not a defense to the charge. He found appellant guilty, and fined him $50. There being no further right to appeal within the Texas judicial system, [Footnote 1] appellant appealed to this Court; we noted probable jurisdiction. 389 U.S. 810 (1967).

I
The principal testimony was that of Dr. David Wade, a Fellow of the American Medical Association, duly certificated in psychiatry. His testimony consumed a total of 17 pages in the trial transcript. Five of those pages were taken up with a recitation of Dr. Wade's qualifications. Page 392 U. S. 518 In the next 12 pages, Dr. Wade was examined by appellant's counsel, cross-examined by the State, and reexamined by the defense, and those 12 pages contain virtually all the material developed at trial which is relevant to the constitutional issue we face here. Dr. Wade sketched the outlines of the "disease" concept of alcoholism; noted that

there is no generally accepted definition of "alcoholism"; alluded to the ongoing debate within the medical profession over whether alcohol is actually physically "addicting" or merely psychologically "habituating", and concluded that, in either case a "chronic alcoholic" is an "involuntary drinker," who is "powerless not to drink," and who "loses his self control over his drinking." He testified that he had examined appellant, and that appellant is a "chronic alcoholic," who "by the time he has reached [the state of intoxication] . . . , is not able to control his behavior, and [who] . . . has reached this point because he has an uncontrollable compulsion to drink." Dr. Wade also responded in the negative to the question whether appellant has "the willpower to resist the constant excessive consumption of alcohol." He added that, in his opinion, jailing appellant without medical attention would operate neither to rehabilitate him nor to lessen his desire for alcohol. On cross-examination, Dr. Wade admitted that, when appellant was sober, he knew the difference between right and wrong, and he responded affirmatively to the question whether appellant's act of taking the first drink in any given instance when he was sober was a "voluntary exercise of his will." Qualifying his answer, Dr. Wade stated that "these individuals have a compulsion, and this compulsion, while not completely overpowering, is a very strong influence, an exceedingly strong influence, and this compulsion, coupled with the firm belief in their mind that they are going to be able to handle it from now on, causes their judgment to be somewhat clouded. " Page 392 U. S. 519 Appellant testified concerning the history of his drinking problem. He reviewed his many arrests for drunkenness; testified that he was unable to stop drinking; stated that, when he was intoxicated, he had no control over his actions and could not remember them later, but that he did not become violent, and admitted that he did not remember his arrest on the occasion for which he was being tried. On cross-examination, appellant admitted that he had had one drink on the morning of the trial, and had been able to discontinue drinking. In relevant part, the cross-examination went as follows: "Q. You took that one at eight o'clock because you wanted to drink?" "A. Yes, sir." "Q. And you knew that, if you drank it, you could keep on drinking and get drunk?"

"A. Well, I was supposed to be here on trial, and I didn't take but that one drink." "Q. You knew you had to be here this afternoon, but, this morning, you took one drink and then you knew that you couldn't afford to drink any more and come to court; is that right?" "A. Yes, sir, that's right." "Q. So you exercised your willpower and kept from drinking anything today except that one drink?" "A. Yes, sir, that's right." "Q. Because you knew what you would do if you kept drinking, that you would finally pass out or be picked up?" "A. Yes, sir." "Q. And you didn't want that to happen to you today?" "A. No, sir." "Q. Not today?" "A. No, sir. " Page 392 U. S. 520 "Q. So you only had one drink today?" "A. Yes, sir." On redirect examination, appellant's lawyer elicited the following: "Q. Leroy, isn't the real reason why you just had one drink today because you just had enough money to buy one drink?" "A. Well, that was just give to me." "Q. In other words, you didn't have any money with which you could buy any drinks yourself?" "A. No, sir, that was give to me." "Q. And that's really what controlled the amount you drank this morning, isn't it?" "A. Yes, sir."

"Q. Leroy, when you start drinking, do you have any control over how many drinks you can take?" "A. No, sir." Evidence in the case then closed. The State made no effort to obtain expert psychiatric testimony of its own, or even to explore with appellant's witness the question of appellant's power to control the frequency, timing, and location of his drinking bouts, or the substantial disagreement within the medical profession concerning the nature of the disease, the efficacy of treatment and the prerequisites for effective treatment. It did nothing to examine or illuminate what Dr. Wade might have meant by his reference to a "compulsion" which was "not completely overpowering," but which was "an exceedingly strong influence," or to inquire into the question of the proper role of such a "compulsion" in constitutional adjudication. Instead, the State contented itself with a brief argument that appellant had no defense to the charge because he "is legally sane and knows the difference between right and wrong." Page 392 U. S. 521 Following this abbreviated exposition of the problem before it, the trial court indicated its intention to disallow appellant's claimed defense of "chronic alcoholism." Thereupon, defense counsel submitted, and the trial court entered, the following "findings of fact": "(1) That chronic alcoholism is a disease which destroys the afflicted person's willpower to resist the constant, excessive consumption of alcohol." "(2) That a chronic alcoholic does not appear in public by his own volition, but under a compulsion symptomatic of the disease of chronic alcoholism." "(3) That Leroy Powell, defendant herein, is a chronic alcoholic who is afflicted with the disease of chronic alcoholism." Whatever else may be said of them, those are not "findings of fact" in any recognizable, traditional sense in which that term has been used in a court of law; they are the premises of a syllogism transparently designed to bring this case within the scope of this Court's opinion in Robinson v. California, 370 U. S. 660 (1962). Nonetheless, the dissent would have us adopt these "findings" without critical examination; it would use them as the basis for a constitutional holding that

"a person may not be punished if the condition essential to constitute the defined crime is part of the pattern of his disease and is occasioned by a compulsion symptomatic of the disease." Post at 392 U. S. 569. The difficulty with that position, as we shall show, is that it goes much too far on the basis of too little knowledge. In the first place, the record in this case is utterly inadequate to permit the sort of informed and responsible adjudication which alone can support the announcement of an important and wide-ranging new constitutional principle. We know very little about the circumstances surrounding the drinking bout which resulted Page 392 U. S. 522 in this conviction, or about Leroy Powell's drinking problem, or indeed about alcoholism itself. The trial hardly reflects the sharp legal and evidentiary clash between fully prepared adversary litigants which is traditionally expected in major constitutional cases. The State put on only one witness, the arresting officer. The defense put on three -- a policeman who testified to appellant's long history of arrests for public drunkenness, the psychiatrist, and appellant himself. Furthermore, the inescapable fact is that there is no agreement among members of the medical profession about what it means to say that "alcoholism" is a "disease." One of the principal works in this field states that the major difficulty in articulating a "disease concept of alcoholism" is that "alcoholism has too many definitions, and disease has practically none." [Footnote 2] This same author concludes that "a disease is what the medical profession recognizes as such." [Footnote 3] In other words, there is widespread agreement today that "alcoholism" is a "disease," for the simple reason that the medical profession has concluded that it should attempt to treat those who have drinking problems. There, the agreement stops. Debate rages within the medical profession as to whether "alcoholism" is a separate "disease" in any meaningful biochemical, physiological or psychological sense, or whether it represents one peculiar manifestation in some individuals of underlying psychiatric disorders. [Footnote 4] Nor is there any substantial consensus as to the "manifestations of alcoholism." E. M. Jellinek, one of the outstanding authorities on the subject, identifies five Page 392 U. S. 523

different types of alcoholics which predominate in the United States, and these types display a broad range of different and occasionally inconsistent symptoms. [Footnote 5] Moreover, wholly distinct types, relatively rare in this country, predominate in nations with different cultural attitudes regarding the consumption of alcohol. [Footnote 6] Even if we limit our consideration to the range of alcoholic symptoms more typically found in this country, there is substantial disagreement as to the manifestations of the "disease" called "alcoholism." Jellinek, for example, considers that only two of his five alcoholic types can truly be said to be suffering from "alcoholism" as a "disease," because only these two types attain what he believes to be the requisite degree of physiological dependence on alcohol. [Footnote 7] He applies the label "gamma alcoholism" to "that species of alcoholism in which (1) acquired increased tissue tolerance to alcohol, (2) adaptive cell metabolism . . . (3) withdrawal symptoms and 'craving,' i.e., physical dependence, and (4) loss of control are involved. [Footnote 8]" A "delta" alcoholic, on the other hand, "shows the first three characteristics of gamma alcoholism as well as a less marked form of the fourth characteristic -- that is, instead of loss of control, Page 392 U. S. 524 there is inability to abstain. [Footnote 9]" Other authorities approach the problems of classification in an entirely different manner, and, taking account of the large role which psycho-social factors seem to play in "problem drinking," define the "disease" in terms of the earliest identifiable manifestations of any sort of abnormality in drinking patterns. [Footnote 10] Dr. Wade appears to have testified about appellant's "chronic alcoholism" in terms similar to Jellinek's "gamma" and "delta" types, for these types are largely defined, in their later stages, in terms of a strong compulsion to drink, physiological dependence, and an inability to abstain from drinking. No attempt was made in the court below, of course, to determine whether Leroy Powell could, in fact, properly be diagnosed as a "gamma" or "delta" alcoholic in Jellinek's terms. The focus at the trial, and in the dissent here, has been exclusively upon the factors of loss of control and inability to abstain. Assuming that it makes sense to compartmentalize in this manner the diagnosis of such a formless "disease," tremendous gaps in our knowledge remain, which the record in this case does nothing to fill.

The trial court's "finding" that Powell "is afflicted with the disease of chronic alcoholism," which "destroys the afflicted person's willpower to resist the constant, excessive consumption of alcohol" covers a multitude of sins. Dr. Wade's testimony that appellant suffered from a compulsion which was an "exceedingly strong influence," but which was "not completely overpowering," is at least more carefully stated, if no less mystifying. Jellinek insists that conceptual clarity can only be achieved by distinguishing carefully between "loss of control" once an individual has commenced to drink and "inability to abstain" Page 392 U. S. 525 from drinking in the first place. [Footnote 11] Presumably, a person would have to display both characteristics in order to make out a constitutional defense, should on be recognized. Yet the "findings" of the trial court utterly fail to make this crucial distinction, and there is serious question whether the record can be read to support a finding of either loss of control or inability to abstain. Dr. Wade did testify that, once appellant began drinking, he appeared to have no control over the amount of alcohol he finally ingested. Appellant's own testimony concerning his drinking on the day of the trial would certainly appear, however, to cast doubt upon the conclusion that he was without control over his consumption of alcohol when he had sufficiently important reasons to exercise such control. However that may be, there are more serious factual and conceptual difficulties with reading this record to show that appellant was unable to abstain from drinking. Dr. Wade testified that, when appellant was sober, the act of taking the first drink was a "voluntary exercise of his will," but that this exercise of will was undertaken under the "exceedingly strong influence" of a "compulsion" which was "not completely overpowering." Such concepts, when juxtaposed in this fashion, have little meaning. Moreover, Jellinek asserts that it cannot accurately be said that a person is truly unable to abstain from drinking unless he is suffering the physical symptoms of withdrawal. [Footnote 12] There is no testimony in this record that Leroy Powell underwent withdrawal symptoms, either before he began the drinking spree which resulted in the conviction under review here or at any other time. In attempting to deal with the alcoholic's desire for drink in the absence of withdrawal symptoms, Jellinek is reduced Page 392 U. S. 526

to

unintelligible

distinctions

between

"compulsion"

(a

"psychopathological

phenomenon" which can apparently serve in some instances as the functional equivalent of a "craving" or symptom of withdrawal) and an "impulse" (something which differs from a loss of control, a craving or a compulsion, and to which Jellinek attributes the start of a new drinking bout for a "gamma" alcoholic). [Footnote 13] Other scholars are equally unhelpful in articulating the nature of a "compulsion." [Footnote 14] It is one thing to say that, if a man is deprived of alcohol, his hands will begin to shake, he will suffer agonizing pains, and ultimately he will have hallucinations; it is quite another to say that a man has a "compulsion" to take a drink, but that he also retains a certain amount of "free will" with which to resist. It is simply impossible, in the present state of our knowledge, to ascribe a useful meaning to the latter statement. This definitional confusion reflects, of course, not merely the undeveloped state of the psychiatric art, but also the conceptual difficulties inevitably attendant upon the importation of scientific and medical models into a legal system generally predicated upon a different set of assumptions. [Footnote 15]

II
Despite the comparatively primitive state of our knowledge on the subject, it cannot be denied that the destructive use of alcoholic beverages is one of our principal Page 392 U. S. 527 social and public health problems. [Footnote 16] The lowest current informed estimate places the number of "alcoholics" in America (definitional problems aside) at 4,000,000, [Footnote 17] and most authorities are inclined to put the figure considerably higher. [Footnote 18] The problem is compounded by the fact that a very large percentage of the alcoholics in this country are "invisible" -- they possess the means to keep their drinking problems secret, and the traditionally uncharitable attitude of our society toward alcoholics causes many of them to refrain from seeking treatment from any source. [Footnote 19] Nor can it be gainsaid that the legislative response to this enormous problem has in general been inadequate. There is as yet no known generally effective method for treating the vast number of alcoholics in our society. Some individual alcoholics have responded to particular forms of therapy with remissions of their symptomatic dependence upon the drug. But just as there is no agreement among doctors and social workers with respect to the causes of alcoholism, there is no consensus as to why particular treatments have been effective

in particular cases, and there is no generally agreed-upon approach to the problem of treatment on a large scale. [Footnote 20] Most psychiatrists are apparently of the opinion that alcoholism is far more difficult to treat than other forms of behavioral disorders, and some believe it is impossible Page 392 U. S. 528 to cure by means of psychotherapy; indeed, the medical profession as a whole, and psychiatrists in particular, have been severely criticised for the prevailing reluctance to undertake the treatment of drinking problems. [Footnote 21] Thus, it is entirely possible that, even were the manpower and facilities available for a full-scale attack upon chronic alcoholism, we would find ourselves unable to help the vast bulk of our "visible" -- let alone our "invisible" -- alcoholic population. However, facilities for the attempted treatment of indigent alcoholics are woefully lacking throughout the country. [Footnote 22] It would be tragic to return large numbers of helpless, sometimes dangerous and frequently unsanitary inebriates to the streets of our cities without even the opportunity to sober up adequately which a brief jail term provides. Presumably no State or city will tolerate Page 392 U. S. 529 such a state of affairs. Yet the medical profession cannot, and does not, tell us with any assurance that, even if the buildings, equipment and trained personnel were made available, it could provide anything more than slightly higher-class jails for our indigent habitual inebriates. Thus, we run the grave risk that nothing will be accomplished beyond the hanging of a new sign -- reading "hospital" -- over one wing of the jailhouse. [Footnote 23] One virtue of the criminal process is, at least, that the duration of penal incarceration typically has some outside statutory limit; this is universally true in the case of petty offenses, such as public drunkenness, where jail terms are quite short on the whole. "Therapeutic civil commitment" lacks this feature; one is typically committed until one is "cured." Thus, to do otherwise than affirm might subject indigent alcoholics to the risk that they may be locked up for an indefinite period of time under the same conditions as before, with no more hope than before of receiving effective treatment and no prospect of periodic "freedom." [Footnote 24] Page 392 U. S. 530

Faced with this unpleasant reality, we are unable to assert that the use of the criminal process as a means of dealing with the public aspects of problem drinking can never be defended as rational. The picture of the penniless drunk propelled aimlessly and endlessly through the law's "revolving door" of arrest, incarceration, release and rearrest is not a pretty one. But before we condemn the present practice across the board, perhaps we ought to be able to point to some clear promise of a better world for these unfortunate people. Unfortunately, no such promise has yet been forthcoming. If, in addition to the absence of a coherent approach to the problem of treatment, we consider the almost complete absence of facilities and manpower for the implementation of a rehabilitation program, it is difficult to say in the present context that the criminal process is utterly lacking in social value. This Court has never held that anything in the Constitution requires that penal sanctions be designed solely to achieve therapeutic or rehabilitative effects, and it can hardly be said with assurance that incarceration serves such purposes any better for the general run of criminals than it does for public drunks. Ignorance likewise impedes our assessment of the deterrent effect of criminal sanctions for public drunkenness. The fact that a high percentage of American alcoholics conceal their drinking problems not merely by avoiding public displays of intoxication, but also by shunning all forms of treatment, is indicative that some powerful deterrent operates to inhibit the public revelation Page 392 U. S. 531 of the existence of alcoholism. Quite probably, this deterrent effect can be largely attributed to the harsh moral attitude which our society has traditionally taken toward intoxication and the shame which we have associated with alcoholism. Criminal conviction represents the degrading public revelation of what Anglo-American society has long condemned as a moral defect, and the existence of criminal sanctions may serve to reinforce this cultural taboo, just as we presume it serves to reinforce other stronger feelings against murder, rape, theft, and other forms of antisocial conduct. Obviously, chronic alcoholics have not been deterred from drinking to excess by the existence of criminal sanctions against public drunkenness. But all those who violate penal laws of any kind are, by definition, undeterred. The longstanding and still-raging debate over the validity of the deterrence justification for penal sanctions has not reached any sufficiently clear conclusions to permit it to be said that such sanctions are ineffective in any particular context or for any particular group of people who are able

to appreciate the consequences of their acts. Certainly no effort was made at the trial of this case, beyond a monosyllabic answer to a perfunctory one-line question, to determine the effectiveness of penal sanctions in deterring Leroy Powell in particular or chronic alcoholics in general from drinking at all or from getting drunk in particular places or at particular times.

III
Appellant claims that his conviction on the facts of this case would violate the Cruel and Unusual Punishment Clause of the Eighth Amendment as applied to the States through the Fourteenth Amendment. The primary purpose of that clause has always been considered, and properly so, to be directed at the method or kind of Page 392 U. S. 532 punishment imposed for the violation of criminal statutes; the nature of the conduct made criminal is ordinarily relevant only to the fitness of the punishment imposed. See, e.g., Trop v. Dulles, 356 U. S. 86 (1958); Louisiana ex rel. Francis v. Resweber, 329 U. S. 459 (1947); Weems v. United States, 217 U. S. 349 (1910). [Footnote 25] Appellant, however, seeks to come within the application of the Cruel and Unusual Punishment Clause announced in Robinson v. California, 370 U. S. 660 (1962), which involved a state statute making it a crime to "be addicted to the use of narcotics." This Court held there that "a state law which imprisons a person thus afflicted [with narcotic addiction] as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment. . . ." Id. at 370 U. S. 667. On its face, the present case does not fall within that holding, since appellant was convicted not for being a chronic alcoholic, but for being in public while drunk on a particular occasion. The State of Texas thus has not sought to punish a mere status, as California did in Robinson; nor has it attempted to regulate appellant's behavior in the privacy of his own home. Rather, it has imposed upon appellant a criminal sanction for public behavior which may create substantial health and safety hazards both for appellant and for members of the general public, and which offends the moral and esthetic sensibilities of a large segment of the community. This seems a far cry from

convicting one for being an addict, being a chronic alcoholic, being "mentally ill, or a leper. . . ." Id. at 370 U. S. 666. Page 392 U. S. 533 Robinson, so viewed, brings this Court but a very small way into the substantive criminal law. And unless Robinson is so viewed, it is difficult to see any limiting principle that would serve to prevent this Court from becoming, under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility in diverse areas of the criminal law throughout the country. It is suggested in dissent that Robinson stands for the "simple" but "subtle" principle that "[c]riminal penalties may not be inflicted upon a person for being in a condition he is powerless to change." Post at 392 U. S. 567. In that view, appellant's "condition" of public intoxication was "occasioned by a compulsion symptomatic of the disease" of chronic alcoholism, and thus, apparently, his behavior lacked the critical element ofmens rea. Whatever may be the merits of such a doctrine of criminal responsibility, it surely cannot be said to follow from Robinson. The entire thrust of Robinson'sinterpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps, in historical common law terms, has committed some actus reus. It thus does not deal with the question of whether certain conduct cannot constitutionally be punished because it is, in some sense, "involuntary" or "occasioned by a compulsion." Likewise, as the dissent acknowledges, there is a substantial definitional distinction between a "status," as in Robinson, and a "condition," which is said to be involved in this case. Whatever may be the merits of an attempt to distinguish between behavior and a condition, it is perfectly clear that the crucial element in this case, so far as the dissent is concerned, is whether or not appellant can legally be held responsible for his Page 392 U. S. 534 appearance in public in a state of intoxication. The only relevance of Robinson to this issue is that, because the Court interpreted the statute there involved as making a "status" criminal, it was able to suggest that the statute would cover even a situation in which addiction had been acquired involuntarily. 370 U.S. at 370 U. S. 667, n. 9. That this factor was not determinative in the case is shown by the fact that there was no indication of how Robinson himself had become an addict.

Ultimately, then, the most troubling aspects of this case, were Robinson to be extended to meet it, would be the scope and content of what could only be a constitutional doctrine of criminal responsibility. In dissent, it is urged that the decision could be limited to conduct which is "a characteristic and involuntary part of the pattern of the disease as it afflicts" the particular individual, and that "[i]t is not foreseeable" that it would be applied "in the case of offenses such as driving a car while intoxicated, assault, theft, or robbery." Post at 392 U. S. 559, n. 2. That is limitation by fiat. In the first place, nothing in the logic of the dissent would limit its application to chronic alcoholics. If Leroy Powell cannot be convicted of public intoxication, it is difficult to see how a State can convict an individual for murder if that individual, while exhibiting normal behavior in all other respects, suffers from a "compulsion" to kill which is an "exceedingly strong influence," but "not completely overpowering." [Footnote 26] Even if we limit our consideration to chronic alcoholics, it would seem impossible to confine the principle within the arbitrary bounds which the dissent seems to envision. It is not difficult to imagine a case involving psychiatric testimony to the effect that an individual suffers Page 392 U. S. 535 from some aggressive neurosis which he is able to control when sober; that very little alcohol suffices to remove the inhibitions which normally contain these aggressions, with the result that the individual engages in assaultive behavior without becoming actually intoxicated, and that the individual suffers from a very strong desire to drink, which is an "exceedingly strong influence," but "not completely overpowering." Without being untrue to the rationale of this case, should the principles advanced in dissent be accepted here, the Court could not avoid holding such an individual constitutionally unaccountable for his assaultive behavior. Traditional common law concepts of personal accountability and essential

considerations of federalism lead us to disagree with appellant. We are unable to conclude, on the state of this record or on the current state of medical knowledge, that chronic alcoholics in general, and Leroy Powell in particular, suffer from such an irresistible compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both of these acts, and thus cannot be deterred at all from public intoxication. And, in any event, this Court has never articulated a general constitutional doctrine of mens rea. [Footnote 27]

We cannot cast aside the centuries-long evolution of the collection of interlocking and overlapping concepts which the common law has utilized to assess the moral Page 392 U. S. 536 accountability of an individual for his antisocial deeds. [Footnote 28] The doctrines ofactus reus, mens rea, insanity, mistake, justification, and duress have historically provided the tools for a constantly shifting adjustment of the tension between the evolving aims of the criminal law and changing religious, moral, philosophical, and medical views of the nature of man. This process of adjustment has always been thought to be the province of the States. Nothing could be less fruitful than for this Court to be impelled into defining some sort of insanity test in constitutional terms. Yet that task would seem to follow inexorably from an extension of Robinson to this case. If a person in the "condition" of being a chronic alcoholic cannot be criminally punished as a constitutional matter for being drunk in public, it would seem to follow that a person who contends that, in terms of one test, "his unlawful act was the product of mental disease or mental defect,"Durham v. United States, 94 U.S.App.D.C. 228, 241, 214 F.2d 862, 875 (1954), would state an issue of constitutional dimension with regard to his criminal responsibility had he been tried under some different, and perhaps lesser, standard, e.g., the right-wrong test of M'Naghten's Case. [Footnote 29] The experimentation of one jurisdiction in that field alone indicates the magnitude of the problem. See, e.g., Carter v. United States,102 U.S.App.D.C. 227, 252 F.2d 608 (1957); Blocker v. United States, 107 U.S.App.D.C. 63, 274 F.2d 572 (1959); Blocker v. United States, 110 U.S.App.D.C. 41, 288 F.2d 853 (1961) (en banc); McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) (en banc); Washington v. United States, ___ U.S.App.D.C. ___, 390 F.2d 444 (1967). But formulating a constitutional rule would reduce, if not eliminate, that fruitful Page 392 U. S. 537 experimentation, and freeze the developing productive dialogue between law and psychiatry into a rigid constitutional mold. It is simply not yet the time to write into the Constitution formulas cast in terms whose meaning, let alone relevance, is not yet clear either to doctors or to lawyers. Affirmed. [Footnote 1]

Tex.Code Crim.Proc., Art. 4.03 (1966). [Footnote 2] E. Jellinek, The Disease Concept of Alcoholism 11 (1960). [Footnote 3] Id. at 12 (emphasis in original). [Footnote 4] See, e.g., Joint Information Serv. of the Am. Psychiatric Assn. & the Nat. Assn. for Mental Health, The Treatment of Alcoholism -- A Study of Programs and Problems 6 (1967) (hereafter cited as Treatment of Alcoholism). [Footnote 5] Jellinek, supra, n 2, at 35-41. [Footnote 6] For example, in nations where large quantities of wine are customarily consumed with meals, apparently there are many people who are completely unaware that they have a "drinking problem" -- they rarely if ever show signs of intoxication, they display no marked symptoms of behavioral disorder, and are entirely capable of limiting their alcoholic intake to a reasonable amount -- and yet who display severe withdrawal symptoms, sometimes including delirium tremens, when deprived of their daily portion of wine. M. Block, Alcoholism -- Its Facets and Phases 27 (1965); Jellinek, supra, n 2, at 17. See generally id. at 13-32. [Footnote 7] Jellinek, supra, n 2, at 40. [Footnote 8] Jellinek, supra, n 2, at 37. [Footnote 9] Id. at 38. [Footnote 10] See Block, supra, n 6, at 199.

[Footnote 11] Jellinek, supra, n 2, at 41-42. [Footnote 12] Id. at 43. [Footnote 13] Id. at 41-44. Dr. Wade did not clarify matters when he testified at trial that a chronic alcoholic suffers from "the same type of compulsion" as a "compulsive eater." [Footnote 14] See, e.g., Block, supra, n 6, at 40, 55, 308; Treatment of Alcoholism 6-8; Note, Alcoholism, Public Intoxication and the Law, 2 Col.J.Law & Soc.Prob. 109, 112-114 (1966). [Footnote 15] See Washington v. United States, ___ U.S.App.D.C. ___, 390 F.2d 444, 446-456 (1967). [Footnote 16] See generally Block, supra, n 6, at 19-30, 43-49. [Footnote 17] See Treatment of Alcoholism 11. [Footnote 18] Block, supra, n 6, at 43-44; Blum & Braunstein, Mind-altering Drugs and Dangerous Behavior: Alcohol, in President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Drunkenness 29, 30 (1967); Note, 2 Col.J.Law & Soc.Prob. 109 (1966). [Footnote 19] See Block, supra, n 6, at 74-81; Note, 2 Col.J.Law & Soc.Prob. 109 (1966). [Footnote 20]

See Treatment of Alcoholism 13-17. [Footnote 21] Id. at 18-26 [Footnote 22] Encouraging pilot projects do exist. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Drunkenness 50-64, 82-108 (1967). But the President's Commission concluded that the "strongest barrier" to the abandonment of the current use of the criminal process to deal with public intoxication "is that there presently are no clear alternatives for taking into custody and treating those who are now arrested as drunks." President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 235 (1967). Moreover, even if massive expenditures for physical plants were forthcoming, there is a woeful shortage of trained personnel to man them. One study has concluded that: "[T]here is little likelihood that the number of workers in these fields could be sufficiently increased to treat even a large minority of problem drinkers. In California, for instance, according to the best estimate available, providing all problem drinkers with weekly contact with a psychiatrist and once-a-month contact with a social worker would require the full time work of every psychiatrist and every trained social worker in the United States." Cooperative Commission on Study of Alcoholism, Alcohol Problems 120 (1967) (emphasis in original). [Footnote 23] For the inadequate response in the District of Columbia following Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966), which held, on constitutional and statutory grounds, that a chronic alcoholic could not be punished for public drunkenness, see President's Commission on Crime in the District of Columbia, Report 486-490 (1966). [Footnote 24] Counsel for amici curiae ACLU et al., who has been extremely active in the recent spate of litigation dealing with public intoxication statutes and the chronic inebriate, recently told an annual meeting of the National Council on Alcoholism:

"We have not fought for two years to extract DeWitt Easter, Joe Driver, and their colleagues from jail only to have them involuntarily committed for an even longer period of time, with no assurance of appropriate rehabilitative help and treatment. . . . The euphemistic name 'civil commitment' can easily hide nothing more than permanent incarceration. . . . I would caution those who might rush headlong to adopt civil commitment procedures and remind them that just as difficult legal problems exist there as with the ordinary jail sentence." Quoted in Robitscher, Psychiatry and Changing Concepts of Criminal Responsibility, 31 Fed.Prob. 44, 49 (No. 3, Sept.1967). Cf. Note, The Nascent Right to Treatment, 53 Va.L.Rev. 1134 (1967). [Footnote 25] See generally Note, The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv.L.Rev. 635 (1966). [Footnote 26] Cf. Commonwealth v. Phelan, 427 Pa. 265, 234 A.2d 540 (1967), cert. denied, 391 U.S. 920 (1968). [Footnote 27] The Court did hold in Lambert v. California, 355 U. S. 225 (1957), that a person could not be punished for a "crime" of omission if that person did not know, and the State had taken no reasonable steps to inform him, of his duty to act and of the criminal penalty for failure to do so. It is not suggested either that Lambert established a constitutional doctrine of mens rea, see generally Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, or that appellant in this case was not fully aware of the prohibited nature of his conduct and of the consequences of taking his first drink. [Footnote 28] See generally Sayre, Mens Rea, 45 Harv.L.Rev. 974 (1932). [Footnote 29] 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843). MR. JUSTICE BLACK, whom MR. JUSTICE HARLAN joins, concurring.

While I agree that the grounds set forth in MR. JUSTICE MARSHALLS opinion are sufficient to require affirmance of the judgment here, I wish to amplify my reasons for concurring. Those who favor the change now urged upon us rely on their own notions of the wisdom of this Texas law to erect a constitutional barrier, the desirability of which is far from clear. To adopt this position would significantly limit the States in their efforts to deal with a widespread and important social problem and would do so by announcing a revolutionary doctrine of constitutional law that would also tightly restrict state power to deal with a wide variety of other harmful conduct.

I
Those who favor holding that public drunkenness cannot be made a crime rely to a large extent on their own notions of the wisdom of such a change in the law. A great deal of medical and sociological data is cited to us in support of this change. Stress is put upon the fact that medical authorities consider alcoholism a disease, and have urged a variety of medical approaches to treating it. It is pointed out that a high percentage of all arrests in America are for the crime of public drunkenness, and that the enforcement of these laws constitutes a tremendous burden on the police. Then it is argued that Page 392 U. S. 538 there is no basis whatever for claiming that to jail chronic alcoholics can be a deterrent or a means of treatment; on the contrary, jail has, in the expert judgment of these scientists, a destructive effect. All in all, these arguments read more like a highly technical medical critique than an argument for deciding a question of constitutional law one way or another. Of course, the desirability of this Texas statute should be irrelevant in a court charged with the duty of interpretation, rather than legislation, and that should be the end of the matter. But since proponents of this grave constitutional change insist on offering their pronouncements on these questions of medical diagnosis and social policy, I am compelled to add that, should we follow their arguments, the Court would be venturing far beyond the realm of problems for which we are in a position to know what we are talking about. Public drunkenness has been a crime throughout our history, and, even before our history, it was explicitly proscribed by a 1606 English statute, 4 Jac. 1, c. 5. It is today

made an offense in every State in the Union. The number of police to be assigned to enforcing these laws and the amount of time they should spend in the effort would seem to me a question for each local community. Never, even by the wildest stretch of this Court's judicial review power, could it be thought that a State's criminal law could be struck down because the amount of time spent in enforcing it constituted, in some expert's opinion, a tremendous burden. Jailing of chronic alcoholics is definitely defended as therapeutic, and the claims of therapeutic value are not insubstantial. As appellee notes, the alcoholics are removed from the streets, where, in their intoxicated state, they may be in physical danger, and are given food, clothing, and shelter until they "sober up," and thus at least regain their ability to keep from being run over by Page 392 U. S. 539 automobiles in the street. Of course, this treatment may not be "therapeutic" in the sense of curing the underlying causes of their behavior, but it seems probable that the effect of jail on any criminal is seldom "therapeutic" in this sense, and, in any case, the medical authorities relied on so heavily by appellant themselves stress that no generally effective method of curing alcoholics has yet been discovered. Apart from the value of jail as a form of treatment, jail serves other traditional functions of the criminal law. For one thing, it gets the alcoholics off the street, where they may cause harm in a number of ways to a number of people, and isolation of the dangerous has always been considered an important function of the criminal law. In addition, punishment of chronic alcoholics can serve several deterrent functions -- it can give potential alcoholics an additional incentive to control their drinking, and it may, even in the case of the chronic alcoholic, strengthen his incentive to control the frequency and location of his drinking experiences. These values served by criminal punishment assume even greater significance in light of the available alternatives for dealing with the problem of alcoholism. Civil commitment facilities may not be any better than the jails they would replace. In addition, compulsory commitment can hardly be considered a less severe penalty from the alcoholic's point of view. The commitment period will presumably be at least as long, and it might, in fact, be longer, since commitment often lasts until the "sick" person is cured. And compulsory commitment would, of course, carry with it a social

stigma little different in practice from that associated with drunkenness when it is labeled a "crime." Even the medical authorities stress the need for continued experimentation with a variety of approaches. I cannot say that the States should be totally barred from Page 392 U. S. 540 one avenue of experimentation, the criminal process, in attempting to find a means to cope with this difficult social problem. From what I have been able to learn about the subject, it seems to me that the present use of criminal sanctions might possibly be unwise, but I am by no means convinced that any use of criminal sanctions would inevitably be unwise, or, above all, that I am qualified in this area to know what is legislatively wise and what is legislatively unwise.

II
I agree with MR. JUSTICE MARSHALL that the findings of fact in this case are inadequate to justify the sweeping constitutional rule urged upon us. I could not, however, consider any findings that could be made with respect to "voluntariness" or "compulsion" controlling on the question whether a specific instance of human behavior should be immune from punishment as a constitutional matter. When we say that appellant's appearance in public is caused not by "his own" volition, but rather by some other force, we are clearly thinking of a force that is nevertheless "his" except in some special sense. [Footnote 2/1] The accused undoubtedly commits the proscribed act, and the only question is whether the act can be attributed to a part of "his" personality that should not be regarded as criminally responsible. Almost all of the traditional purposes of the criminal law can be significantly served by punishing the person who, in fact, committed the proscribed act, without regard to whether his action was "compelled" by some elusive "irresponsible" aspect of his personality. As I have already indicated, punishment of such a defendant can clearly be justified Page 392 U. S. 541 in terms of deterrence, isolation, and treatment. On the other hand, medical decisions concerning the use of a term such as "disease" or "volition," based as they are on the clinical problems of diagnosis and treatment, bear no necessary correspondence to the legal decision whether the overall objectives of the criminal law can be furthered by imposing punishment. For these reasons, much as I think that criminal sanctions should in many situations be applied only to those whose conduct is morally blameworthy, see

Morissette v. United States, 342 U. S. 246 (1952), I cannot think the States should be held constitutionally required to make the inquiry as to what part of a defendant's personality is responsible for his actions, and to excuse anyone whose action was, in some complex, psychological sense, the result of a "compulsion." [Footnote 2/2]

III
The rule of constitutional law urged by appellant is not required by Robinson v. California, 370 U. S. 660 (1962). In that case, we held that a person could not be punished for the mere status of being a narcotics Page 392 U. S. 542 addict. We explicitly limited our holding to the situation where no conduct of any kind is involved, stating: "We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment." 370 U.S. at 370 U. S. 667. (Emphasis added.) The argument is made that appellant comes within the terms of our holding in Robinson because being drunk in public is a mere status or "condition." Despite this many-faceted use of the concept of "condition," this argument would require converting Robinson into a case protecting actual behavior, a step we explicitly refused to take in that decision. A different question, I admit, is whether our attempt in Robinson to limit our holding to pure status crimes, involving no conduct whatever, was a sound one. I believe it was. Although some of our objections to the statute in Robinson are equally applicable to statutes that punish conduct "symptomatic" of a disease, any attempt to explainRobinson as based solely on the lack of voluntariness encounters a number of logical difficulties. [Footnote 2/3] Other problems raised by status crimes are in no way involved when the State attempts to punish for conduct, and these other problems were, in my view, the controlling aspects of our decision. Page 392 U. S. 543 Punishment for a status is particularly obnoxious, and in many instances can reasonably be called cruel and unusual, because it involves punishment for a mere propensity, a desire to commit an offense; the mental element is not simply one part of the crime,

but may constitute all of it. This is a situation universally sought to be avoided in our criminal law; the fundamental requirement that some action be proved is solidly established even for offenses most heavily based on propensity, such as attempt, conspiracy, and recidivist crimes. [Footnote 2/4] In fact, one eminent authority has found only one isolated instance, in all of Anglo-American jurisprudence, in which criminal responsibility was imposed in the absence of any act at all. [Footnote 2/5] The reasons for this refusal to permit conviction without proof of an act are difficult to spell out, but they are nonetheless perceived and universally expressed in our criminal law. Evidence of propensity can be considered relatively unreliable and more difficult for a defendant to rebut; the requirement of a specific act thus provides some protection against false charges. See 4 Blackstone, Commentaries 21. Perhaps more fundamental is the difficulty of distinguishing, in the absence of any conduct, between desires of the day-dream variety and fixed intentions that may pose a real threat to society; extending the criminal law to cover both types of desire would be unthinkable, since "[t]here can hardly be anyone who has never thought evil. When a desire is inhibited, Page 392 U. S. 544 it may find expression in fantasy; but it would be absurd to condemn this natural psychological mechanism as illegal. [Footnote 2/6]" In contrast, crimes that require the State to prove that the defendant actually committed some proscribed act involve none of these special problems. In addition, the question whether an act is "involuntary" is, as I have already indicated, an inherently elusive question, and one which the State may, for good reasons, wish to regard as irrelevant. In light of all these considerations, our limitation of our Robinson holding to pure status crimes seems to me entirely proper.

IV
The rule of constitutional law urged upon us by appellant would have a revolutionary impact on the criminal law, and any possible limits proposed for the rule would be wholly illusory. If the original boundaries of Robinson are to be discarded, any new limits too would soon fall by the wayside, and the Court would be forced to hold the States powerless to punish any conduct that could be shown to result from a "compulsion," in the complex, psychological meaning of that term. The result, to choose just one illustration, would be to require recognition of "irresistible impulse" as a

complete defense to any crime; this is probably contrary to present law in most American jurisdictions. [Footnote 2/7] The real reach of any such decision, however, would be broader still, for the basic premise underlying the argument is that it is cruel and unusual to punish a person who is not morally blameworthy. I state the proposition in this sympathetic way because I feel there is much to be said for avoiding the use of criminal sanctions in many Page 392 U. S. 545 such situations. See Morissette v. United States, supra. But the question here is one of constitutional law. The legislatures have always been allowed wide freedom to determine the extent to which moral culpability should be a prerequisite to conviction of a crime.E.g., United States v. Dotterweich, 320 U. S. 277 (1943). The criminal law is a social tool that is employed in seeking a wide variety of goals, and I cannot say the Eighth Amendment's limits on the use of criminal sanctions extend as far as this viewpoint would inevitably carry them. But even if we were to limit any holding in this field to "compulsions" that are "symptomatic" of a "disease," in the words of the findings of the trial court, the sweep of that holding would still be startling. Such a ruling would make it clear beyond any doubt that a narcotics addict could not be punished for "being" in possession of drugs or, for that matter, for "being" guilty of using them. A wide variety of sex offenders would be immune from punishment if they could show that their conduct was not voluntary, but part of the pattern of a disease. More generally speaking, a form of the insanity defense would be made a constitutional requirement throughout the Nation, should the Court now hold it cruel and unusual to punish a person afflicted with any mental disease whenever his conduct was part of the pattern of his disease and occasioned by a compulsion symptomatic of the disease. Such a holding would appear to overrule Leland v. Oregon, 343 U. S. 790 (1952), where the majority opinion and the dissenting opinion in which I joined both stressed the indefensibility of imposing on the States any particular test of criminal responsibility. Id. at 343 U. S. 800-801; id. at 343 U. S. 803 (Frankfurter, J., dissenting). The impact of the holding urged upon us would, of course, be greatest in those States which have until now Page 392 U. S. 546

refused to accept any qualifications to the "right from wrong" test of insanity; apparently at least 30 States fall into this category. [Footnote 2/8] But even in States which have recognized insanity defenses similar to the proposed new constitutional rule, or where comparable defenses could be presented in terms of the requirement of a guilty mind (mens rea), the proposed new constitutional rule would be devastating, for constitutional questions would be raised by every state effort to regulate the admissibility of evidence relating to "disease" and "compulsion," and by every state attempt to explain these concepts in instructions to the jury. The test urged would make it necessary to determine not only what constitutes a "disease," but also what is the "pattern" of the disease, what "conditions" are "part" of the pattern, what parts of this pattern result from a "compulsion," and, finally, which of these compulsions are "symptomatic" of the disease. The resulting confusion and uncertainty could easily surpass that experienced by the District of Columbia Circuit in attempting to give content to its similar, though somewhat less complicated, test of insanity. [Footnote 2/9] The range of problems created would seem totally beyond our capacity to settle at all, much less to settle wisely, and even the attempt to define these terms, and thus to impose constitutional and doctrinal rigidity, seems absurd in an area where our understanding is even today so incomplete. Page 392 U. S. 547

V
Perceptive students of history at an early date learned that one country controlling another could do a more successful job if it permitted the latter to keep in force the laws and rules of conduct which it had adopted for itself. When our Nation was created by the Constitution of 1789, many people feared that the 13 straggling, struggling States along the Atlantic composed too great an area ever to be controlled from one central point. As the years went on, however, the Nation crept cautiously westward until it reached the Pacific Ocean and finally the Nation planted its flag on the fardistant Islands of Hawaii and on the frozen peaks of Alaska. During all this period, the Nation remembered that it could be more tranquil and orderly if it functioned on the principle that the local communities should control their own peculiarly local affairs under their own local rules. This Court is urged to forget that lesson today. We are asked to tell the most-distant Islands of Hawaii that they cannot apply their local rules so as to protect a drunken man on their beaches and the local communities of Alaska that they are without power

to follow their own course in deciding what is the best way to take care of a drunken man on their frozen soil. This Court, instead of recognizing that the experience of human beings is the best way to make laws, is asked to set itself up as a board of Platonic Guardians to establish rigid, binding rules upon every small community in this large Nation for the control of the unfortunate people who fall victim to drunkenness. It is always time to say that this Nation is too large, too complex and composed of too great a diversity of peoples for any one of us to have the wisdom to establish the rules by which local Americans must govern their local affairs. The constitutional rule we are urged to adopt is not merely revolutionary -Page 392 U. S. 548 it departs from the ancient faith based on the premise that experience in making local laws by local people themselves is by far the safest guide for a nation like ours to follow. I suspect this is a most propitious time to remember the words of the late Judge Learned Hand, who so wisely said: "For myself, it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not." L. Hand, The Bill of Rights 73 (1958). I would confess the limits of my own ability to answer the age-old questions of the criminal law's ethical foundations and practical effectiveness. I would hold that Robinson v. California establishes a firm and impenetrable barrier to the punishment of persons who, whatever their bare desires and propensities, have committed no proscribed wrongful act. But I would refuse to plunge from the concrete and almost universally recognized premises of Robinson into the murky problems raised by the insistence that chronic alcoholics cannot be punished for public drunkenness, problems that no person, whether layman or expert, can claim to understand, and with consequences that no one can safely predict. I join in affirmance of this conviction. [Footnote 2/1] If an intoxicated person is actually carried into the street by someone else, "he" does not do the act at all, and, of course, he is entitled to acquittal. E.g., Martin v. State, 31 Ala.App. 334, 17 So.2d 427 (1944). [Footnote 2/2]

The need for a cautious and tentative approach has been thoroughly recognized by one of the most active workers for reform in this area, Chief Judge Bazelon of the United States Court of Appeals for the District of Columbia Circuit. In a recent decision limiting the scope of psychiatric testimony in insanity defense cases, Judge Bazelon states: "[I]t may be that psychiatry and the other social and behavioral sciences cannot provide sufficient data relevant to a determination of criminal responsibility no matter what our rules of evidence are. If so, we may be forced to eliminate the insanity defense altogether, or refashion it in a way which is not tied so tightly to the medical model. . . . But at least we will be able to make that decision on the basis of an informed experience. For now, the writer is content to join the court in this first step." Washington v. United States, ___ U.S.App.D.C. ___, ___, n. 33, 390 F.2d 444, 457, n. 33 (1967) (expressing the views of Chief Judge Bazelon). [Footnote 2/3] Although we noted in Robinson, 370 U.S. at 370 U. S. 667, that narcotics addiction apparently is an illness that can be contracted innocently or involuntarily, we barred punishment for addiction even when it could be proved that the defendant had voluntarily become addicted. And we compared addiction to the status of having a common cold, a condition that most people can either avoid or quickly cure when it is important enough for them to do so. [Footnote 2/4] As Glanville Williams puts it, "[t]hat crime requires an act is invariably true if the proposition be read as meaning that a private thought is not sufficient to found responsibility." Williams, Criminal Law -- the General Part 1 (1961). (Emphasis added.) For the requirement of some act as an element of conspiracy and attempt, see id. at 631, 663, 668; R. Perkins, Criminal Law 482, 531-53 (1957). [Footnote 2/5] Williams, supra, n. 4, at 11. [Footnote 2/6] Id. at 2.

[Footnote 2/7] Perkins, supra, n. 4, at 762. [Footnote 2/8] See Model Penal Code 4.01, at 160 (Tent.Draft No. 4, 1955). [Footnote 2/9] Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). Some of the enormous difficulties encountered by the District of Columbia Circuit in attempting to apply its Durham rule are related in H.R.Rep. No. 563, 87th Cong., 1st Sess. (1961). The difficulties and shortcomings of the Durham rule have been fully acknowledged by the District of Columbia Circuit itself, and, in particular, by the author of the Durhamopinion. See Washington v. United States, supra. MR. JUSTICE WHITE, concurring in the result. If it cannot be a crime to have an irresistible compulsion to use narcotics, Robinson v. California, 370 U. S. 660, rehearing denied, 371 U.S. 905 (1962), I do not see how it can constitutionally be a crime to yield to such a compulsion. Punishing an addict for using drugs convicts for addiction under a different name. Distinguishing between the two crimes is like forbidding criminal conviction for being sick with flu or epilepsy, but permitting punishment for running a fever or having a convulsion. Unless Robinson is to be abandoned, the use of narcotics by an Page 392 U. S. 549 addict must be beyond the reach of the criminal law. Similarly, the chronic alcoholic with an irresistible urge to consume alcohol should not be punishable for drinking or for being drunk. Powell's conviction was for the different crime of being drunk in a public place. Thus, even if Powell was compelled to drink, and so could not constitutionally be convicted for drinking, his conviction in this case can be invalidated only if there is a constitutional basis for saying that he may not be punished for being in public while drunk. The statute involved here, which aims at keeping drunks off the street for their own welfare and that of others, is not challenged on the ground that it interferes unconstitutionally with the right to frequent public places. No question is raised about applying this statute to the nonchronic drunk, who has no compulsion to drink, who need not drink to

excess, and who could have arranged to do his drinking in private or, if he began drinking in public, could have removed himself at an appropriate point on the path toward complete inebriation. The trial court said that Powell was a chronic alcoholic with a compulsion not only to drink to excess, but also to frequent public places when intoxicated. Nothing in the record before the trial court supports the latter conclusion, which is contrary to common sense and to common knowledge. [Footnote 3/1] The sober chronic alcoholic has no Page 392 U. S. 550 compulsion to be on the public streets; many chronic alcoholics drink at home, and are never seen drunk in public. Before and after taking the first drink, and until he becomes so drunk that he loses the power to know where he is or to direct his movements, the chronic alcoholic with a home or financial resources is as capable as the nonchronic drinker of doing his drinking in private, of removing himself from public places, and, since he knows or ought to know that he will become intoxicated, of making plans to avoid his being found drunk in public. For these reasons, I cannot say that the chronic alcoholic who proves his disease and a compulsion to drink is shielded from conviction when he has knowingly failed to take feasible precautions against committing a criminal act, here the act of going to or remaining in a public place. On such facts, the alcoholic is like a person with smallpox, who could be convicted for being on the street, but not for being ill, or, like the epileptic, who could be punished for driving a car, but not for his disease. [Footnote 3/2] Page 392 U. S. 551 The fact remains that some chronic alcoholics must drink, and hence must drink .somewhere. [Footnote 3/3] Although many chronics have homes, many others do not. For all practical purposes, the public streets may be home for these unfortunates not because their disease compels them to be there, but because, drunk or sober, they have no place else to go and no place else to be when they are drinking. This is more a function of economic station than of disease, although the disease may lead to destitution and perpetuate that condition. For some of these alcoholics, I would think a showing could be made that resisting drunkenness is impossible, and that avoiding public places when intoxicated is also impossible. As applied to them, this statute is, in

effect, a law which bans a single act for which they may not be convicted under the Eighth Amendment -- the act of getting drunk. It is also possible that the chronic alcoholic who begins drinking in private at some point becomes so drunk that Page 392 U. S. 552 he loses the power to control his movements and, for that reason, appears in public. The Eighth Amendment might also forbid conviction in such circumstances, but only on a record satisfactorily showing that it was not feasible for him to have made arrangements to prevent his being in public when drunk, and that his extreme drunkenness sufficiently deprived him of his faculties on the occasion in issue. These prerequisites to the possible invocation of the Eighth Amendment are not satisfied on the record before us. [Footnote 3/4] Whether or not Powell established that he could Page 392 U. S. 553 not have resisted becoming drunk on December 19, 1966, nothing in the record indicates that he could not have done his drinking in private, or that he was so inebriated at the time that he had lost control of his movements and wandered into the public street. Indeed, the evidence in the record strongly suggests that Powell could have drunk at home and made plans while sober to prevent ending up in a public place. Powell had a home and wife, and if there were reasons why he had to drink in public or be drunk there, they do not appear in the record. Also, the only evidence bearing on Powell's condition at the time of his arrest was the testimony of the arresting officer that appellant staggered, smelled of alcohol, and was "very drunk." Powell testified that he had no clear recollection of the situation at the time of his arrest. His testimony about his usual condition when drunk is no substitute for evidence about his condition at the time of his arrest. Neither in the medical testimony nor elsewhere is there any indication that Powell had reached such a state of intoxication that he had lost the ability to comprehend what he was doing or where he was. For all we know from this record, Powell at the time knew precisely where he was, retained the power to stay off or leave the streets, and simply preferred to be there, rather than elsewhere.

It is unnecessary to pursue at this point the further definition of the circumstances or the state of intoxication which might bar conviction of a chronic alcoholic for being drunk in a public place. For the purposes of this case, it is necessary to say only that Powell showed nothing more than that he was to some degree compelled Page 392 U. S. 554 to drink, and that he was drunk at the time of his arrest. He made no showing that he was unable to stay off the streets on the night in question. [Footnote 3/5] Because Powell did not show that his conviction offended the Constitution, I concur in the judgment affirming the Travis County court. [Footnote 3/1] The trial court gave no reasons for its conclusion that Powell appeared in public due to "a compulsion symptomatic of the disease of chronic alcoholism." No facts in the record support that conclusion. The trial transcript strongly suggests that the trial judge merely adopted proposed findings put before him by Powell's counsel. The fact that those findings were of no legal relevance in the trial judge's view of the case is very significant for appraising the extent to which they represented a well considered and well supported judgment. For all these reasons, I do not feel impelled to accept this finding, and certainly would not rest a constitutional adjudication upon it. [Footnote 3/2] Analysis of this difficult case is not advanced by preoccupation with the label "condition." In Robinson, the Court dealt with "a statute which makes the status' of narcotic addiction a criminal offense. . . ." 370 U.S. at 370 U. S. 666. By precluding criminal conviction for such a "status," the Court was dealing with a condition brought about by acts remote in time from the application of the criminal sanctions contemplated, a condition which was relatively permanent in duration, and a condition of great magnitude and significance in terms of human behavior and values. Although the same may be said for the "condition" of being a chronic alcoholic, it cannot be said for the mere transitory state of "being drunk in public." "Being" drunk in public is not far removed in time from the acts of "getting" drunk and "going" into public, and it is not necessarily a state of any great duration. And an isolated instance of "being" drunk in public is of relatively slight importance in the life of an individual, as compared with the condition of being a chronic alcoholic. If it were necessary to distinguish between "acts" and "conditions" for purposes of the Eighth Amendment, I would adhere to the

concept of "condition" implicit in the opinion in Robinson; I would not trivialize that concept by drawing a nonexistent line between the man who appears in public drunk and that same man, five minutes later, who is then "being" drunk in public. The proper subject of inquiry is whether volitional acts brought about the "condition," and whether those acts are sufficiently proximate to the "condition" for it to be permissible to impose penal sanctions on the "condition." [Footnote 3/3] The opinion of MR. JUSTICE MARSHALL makes clear the limitations of our present knowledge of alcoholism and the disagreements among doctors in their description and analysis of the disease. It is also true that, on the record before us, there is some question whether Powell possessed that degree of compulsion which alone would satisfy one of the prerequisites I deem essential to assertion of an Eighth Amendment defense. It is nowhere disputed, however, that there are chronic alcoholics whose need to consume alcohol in large quantities is so persistent and so insistent that they are truly compelled to drink. I find it unnecessary to attempt on this record to determine whether or not Powell is such an alcoholic, for, in my view, his attempt to claim the Eighth Amendment fails for other reasons. [Footnote 3/4] A holding that a person establishing the requisite facts could not, because of the Eighth Amendment, be criminally punished for appearing in public while drunk would be a novel construction of that Amendment, but it would hardly have radical consequences. In the first place, when, as here, the crime charged was being drunk in a public place, only the compulsive chronic alcoholic would have a defense to both elements of the crime -- for his drunkenness because his disease compelled him to drink, and for being in a public place because the force of circumstances, or excessive intoxication, sufficiently deprived him of his mental and physical powers. The drinker who was not compelled to drink, on the other hand, although he might be as poorly circumstanced, equally intoxicated, and equally without his physical powers and cognitive faculties, could have avoided drinking in the first place, could have avoided drinking to excess, and need not have lost the power to manage his movements. Perhaps the heavily intoxicated, compulsive alcoholic who could not have arranged to avoid being in public places may not, consistent with the Eighth Amendment, be convicted for being drunk in a public place. However, it does not necessarily follow that it would be unconstitutional to convict him for committing crimes involving much greater risk to society.

Outside the area of alcoholism, such a holding would not have a wide impact. Concerning drugs, such a construction of the Eighth Amendment would bar conviction only where the drug is addictive, and then only for acts which are a necessary part of addiction, such as simple use. Beyond that, it would preclude punishment only when the addiction to or the use of drugs caused sufficient loss of physical and mental faculties. This doctrine would not bar conviction of a heroin addict for being under the influence of heroin in a public place (although other constitutional concepts might be relevant to such a conviction), or for committing other criminal acts. [Footnote 3/5] I do not question the power of the State to remove a helplessly intoxicated person from a public street, although against his will, and to hold him until he has regained his powers. The person's own safety and the public interest require this much. A statute such as the one challenged in this case is constitutional insofar as it authorizes a police officer to arrest any seriously intoxicated person when he is encountered in a public place. Whether such a person may be charged and convicted for violating the statute will depend upon whether he is entitled to the protection of the Eighth Amendment. MR. JUSTICE FORTAS, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE STEWART join, dissenting. Appellant was charged with being found in a state of intoxication in a public place. This is a violation of Article 477 of the Texas Penal Code, which reads as follows: "Whoever shall get drunk or be found in a state of intoxication in any public place, or at any private house except his own, shall be fined not exceeding one hundred dollars." Appellant was tried in the Corporation Court of Austin, Texas. He was found guilty and fined $20. He appealed to the County Court at Law No. 1 of Travis County, Texas, where a trial de novo was held. Appellant was defended by counsel who urged that appellant was "afflicted with the disease of chronic alcoholism, which has destroyed the power of his will to resist the constant, excessive consumption of alcohol; his appearance Page 392 U. S. 555 in public in that condition is not of his own volition, but a compulsion symptomatic of the disease of chronic alcoholism."

Counsel contended that to penalize appellant for public intoxication would be to inflict upon him cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the United States Constitution. At the trial in the county court, the arresting officer testified that he had observed appellant in the 2000 block of Hamilton Street in Austin; that appellant staggered when he walked; that his speech was slurred, and that he smelled strongly of alcohol. He was not loud or boisterous; he did not resist arrest; he was cooperative with the officer. The defense established that appellant had been convicted of public intoxication approximately 100 times since 1949, primarily in Travis County, Texas. The circumstances were always the same: the "subject smelled strongly of alcoholic beverages, staggered when walking, speech incoherent." At the end of the proceedings, he would be fined: "down in Bastrop County, it's $25.00 down there, and it's $20.00 up here [in Travis County]." Appellant was usually unable to pay the fines imposed for these offenses, and therefore usually has been obliged to work the fines off in jail. The statutory rate for working off such fines in Texas is one day in jail for each $5 of fine unpaid. Texas Code Crim.Proc., Art. 43.09. Appellant took the stand. He testified that he works at a tavern shining shoes. He makes about $12 a week which he uses to buy wine. He has a family, but he does not contribute to its support. He drinks wine every day. He gets drunk about once a week. When he gets drunk, he usually goes to sleep, "mostly" in public places such as the sidewalk. He does not disturb the peace or interfere with others. Page 392 U. S. 556 The defense called as a witness Dr. David Wade, a Fellow of the American Medical Association and a former President of the Texas Medical Association. Dr. Wade is a qualified doctor of medicine, duly certificated in psychiatry. He has been engaged in the practice of psychiatry for more than 20 years. During all of that time, he has been especially interested in the problem of alcoholism. He has treated alcoholics, lectured and written on the subject, and has observed the work of various institutions in treating alcoholism. Dr. Wade testified that he had observed and interviewed the appellant. He said that appellant has a history of excessive drinking dating back to his early years; that appellant drinks only wine and beer; that "he rarely passes a week without going on an alcoholic binge"; that "his consumption of alcohol is limited only by his finances, and when he is broke, he makes an effort to secure alcohol by getting his friends to buy

alcohol for him"; that he buys a "fifty cent bottle" of wine, always with the thought that this is all he will drink; but that he ends by drinking all he can buy until he "is . . . passed out in some joint or out on the sidewalk." According to Dr. Wade, appellant "has never engaged in any activity that is destructive to society or to anyone except himself." He has never received medical or psychiatric treatment for his drinking problem. He has never been referred to Alcoholics Anonymous, a voluntary association for helping alcoholics, nor has he ever been sent to the State Hospital. Dr. Wade's conclusion was that "Leroy Powell is an alcoholic, and that his alcoholism is in a chronic stage." Although the doctor responded affirmatively to a question as to whether the appellant's taking the first drink on any given occasion is "a voluntary exercise of will," his testimony was that "we must take into account" the fact that chronic alcoholics have a "compulsion" to drink which, "while not completely overpowering, is a Page 392 U. S. 557 very strong influence, an exceedingly strong influence," and that this compulsion is coupled with the "firm belief in their mind that they are going to be able to handle it from now on." It was also Dr. Wade's opinion that appellant "has an uncontrollable compulsion to drink," and that he "does not have the willpower [to resist the constant excessive consumption of alcohol or to avoid appearing in public when intoxicated], nor has he been given medical treatment to enable him to develop this willpower." The trial judge in the county court, sitting without a jury, made the following findings of fact: "(1) That chronic alcoholism is a disease which destroys the afflicted person's will power to resist the constant, excessive consumption of alcohol." "(2) That a chronic alcoholic does not appear in public by his own volition, but under a compulsion symptomatic of the disease of chronic alcoholism." "(3) That Leroy Powell, defendant herein, is a chronic alcoholic who is afflicted with the disease of chronic alcoholism. [Footnote 4/1] " Page 392 U. S. 558 The court then rejected appellant's constitutional defense, entering the following conclusion of law:

"(1) The fact that a person is a chronic alcoholic afflicted with the disease of chronic alcoholism is not a defense to being charged with the offense of getting drunk or being found in a state of intoxication in any public place under Art. 477 of the Texas Penal Code." The court found appellant guilty as charged, and increased his fine to $50. Appellant did not have the right to appeal further within the Texas judicial system. Tex.Code Crim.Proc., Art. 4.03. He filed a jurisdictional statement in this Court.

I
The issue posed in this case is a narrow one. There is no challenge here to the validity of public intoxication statutes in general, or to the Texas public intoxication statute in particular. This case does not concern the infliction of punishment upon the "social" drinker -- or upon anyone other than a "chronic alcoholic" who, as the trier of fact here found, cannot "resist the constant, excessive consumption of alcohol." Nor does it relate to any offense other than the crime of public intoxication. The sole question presented is whether a criminal penalty may be imposed upon a person suffering the disease of "chronic alcoholism" for a condition -- being "in a state of intoxication" in public -- which is a characteristic part of the pattern of his disease and which, the trial court found, was not the consequence of appellant's volition, but of "a compulsion symptomatic of the disease of chronic alcoholism." We must consider whether the Eighth Amendment, made applicable to the States through the Page 392 U. S. 559 Fourteenth Amendment, prohibits the imposition of this penalty in these rather special circumstances as "cruel and unusual punishment." This case does not raise any question as to the right of the police to stop and detain those who are intoxicated in public, whether as a result of the disease or otherwise; or as to the State's power to commit chronic alcoholics for treatment. Nor does it concern the responsibility of all alcoholic for criminal acts. We deal here with the mere condition of being intoxicated in public. [Footnote 4/2]

II
As I shall discuss, consideration of the Eighth Amendment issue in this case requires an understanding of "the disease of chronic alcoholism" with which, as the trial court found, appellant is afflicted, which has destroyed his "willpower to resist the constant,

excessive consumption of alcohol," and which leads him to "appear in public [not] by his own volition, but under a compulsion symptomatic of the disease of chronic alcoholism." It is true, of course, that there is a great deal that remains to be discovered about chronic alcoholism. Although many aspects of the disease remain obscure, there are some hard facts -- medical and, especially, legal facts -- that are accessible to us and that provide a context in which the instant case may be analyzed. We are similarly woefully deficient in our medical, diagnostic, and therapeutic Page 392 U. S. 560 knowledge of mental disease and the problem of insanity; but few would urge that, because of this, we should totally reject the legal significance of what we do know about these phenomena. Alcoholism [Footnote 4/3] is a major problem in the United States. [Footnote 4/4] In 1956, the American Medical Association, for the first time, designated alcoholism as a major medical problem and urged that alcoholics be admitted to general hospitals for care. [Footnote 4/5] This significant development marked the acceptance among the medical profession of the "disease concept of alcoholism." [Footnote 4/6] Although there is some problem Page 392 U. S. 561 in defining the concept, its core meaning, as agreed by authorities, is that alcoholism is caused and maintained by something other than the moral fault of the alcoholic, something that, to a greater or lesser extent, depending upon the physiological or psychological makeup and history of the individual, cannot be controlled by him. Today most alcohologists and qualified members of the medical profession recognize the validity of this concept. Recent years have seen an intensification of medical interest in the subject. [Footnote 4/7] Medical groups have become active in educating the public, medical schools, and physicians in the etiology, diagnosis, and treatment of alcoholism. [Footnote 4/8] Authorities have recognized that a number of factors may contribute to alcoholism. Some studies have pointed to physiological influences, such as vitamin deficiency, hormone imbalance, abnormal metabolism, and hereditary proclivity. Other researchers have found more convincing a psychological approach, emphasizing early environment and underlying conflicts and tensions. Numerous studies have indicated the influence of

sociocultural factors. It has been shown, for example, that the incidence of alcoholism among certain ethnic groups is far higher than among others. [Footnote 4/9] Page 392 U. S. 562 The manifestations of alcoholism are reasonably well identified. The late E. M. Jellinek, an eminent alcohologist, has described five discrete types commonly found among American alcoholics. [Footnote 4/10] It is well established that alcohol may be habituative, and "can be physically addicting." [Footnote 4/11] It has been said that "the main point for the nonprofessional is that alcoholism is not within the control of the person involved. He is not willfully drinking." [Footnote 4/12] Although the treatment of alcoholics has been successful in many cases, [Footnote 4/13] physicians have been unable to discover any single treatment method that will invariably produce satisfactory results. A recent study of available treatment facilities concludes as follows: [Footnote 4/14] "Although numerous kinds of therapy and intervention appear to have been effective with various kinds of problem drinkers, the process of matching patient and treatment method is not yet highly developed. There is an urgent need for continued experimentation, for modifying and improving existing Page 392 U. S. 563 treatment methods, for developing new ones, and for careful and well designed evaluative studies. Most of the facilities that provide services for alcoholics have made little, if any, attempt to determine the effectiveness of the total program or of its components." Present services for alcoholics include state and general hospitals, separate state alcoholism programs, outpatient clinics, community health centers, general practitioners, and private psychiatric facilities. [Footnote 4/15] Self-help organizations, such as Alcoholics Anonymous, also aid in treatment and rehabilitation. [Footnote 4/16] The consequences of treating alcoholics, under the public intoxication laws, as criminals can be identified with more specificity. Public drunkenness is punished as a crime, under a variety of laws and ordinances, in every State of the Union. [Footnote 4/17] The Task Force on Drunkenness of the President's Commission on Law Enforcement and Administration of Justice has reported that "[t]wo million arrests in 1965 -- one of every three arrests in America -- were for the offense of public drunkenness." [Footnote

4/18] Drunkenness offenders make up a large percentage of the population in shortterm penal institutions. [Footnote 4/19] Their arrest and processing place a tremendous burden upon the police, who are called upon to spend a large amount of time Page 392 U. S. 564 in arresting for public intoxication and in appearing at trials for public intoxication, and upon the entire criminal process. [Footnote 4/20] It is not known how many drunkenness offenders are chronic alcoholics, but "[t]here is strong evidence . . . that a large number of those who are arrested have a lengthy history of prior drunkenness arrests." [Footnote 4/21] "There are instances of the same person being arrested as many as forty times in a single year on charges of drunkenness, and every large urban center can point to cases of individuals appearing before the courts on such charges 125, 150, or even 200 times in the course of a somewhat longer period. [Footnote 4/22]" It is entirely clear that the jailing of chronic alcoholics is punishment. It is not defended as therapeutic, nor is there any basis for claiming that it is therapeutic (or indeed a deterrent). The alcoholic offender is caught in a "revolving door" -- leading from arrest on the street through a brief, unprofitable sojourn in jail, back to the street and, eventually, another arrest. [Footnote 4/23] The jails, overcrowded and put to a use for which they are not suitable, Page 392 U. S. 565 have a destructive effect upon alcoholic inmates. [Footnote 4/24] Finally, most commentators, as well as experienced judges, [Footnote 4/25] are in agreement that "there is probably no drearier example of the futility of using penal sanctions to solve a psychiatric problem than the enforcement of the laws against drunkenness." [Footnote 4/26] "If all of this effort, all of this investment of time and money, were producing constructive results, then we might find satisfaction in the situation despite its costs. But the fact is that this activity accomplishes little that is fundamental. No one can seriously suggest that the threat of fines and jail sentences actually deters habitual drunkenness or alcoholic addiction. . . . Nor, despite the heroic efforts being made in a few localities, is there much reason to suppose that any very effective measures of cure and therapy can or will be administered in the jails. But the weary process continues, to

the detriment of the total performance of the law enforcement function. [Footnote 4/27]"

III
It bears emphasis that these data provide only a context for consideration of the instant case. They should not dictate our conclusion. The questions for this Court are not settled by reference to medicine or penology. Our task is to determine whether the principles embodied in the Constitution of the United States place any limitations upon the circumstances under which punishment Page 392 U. S. 566 may be inflicted, and, if so, whether, in the case now before us, those principles preclude the imposition of such punishment. It is settled that the Federal Constitution places some substantive limitation upon the power of state legislatures to define crimes for which the imposition of punishment is ordered. In Robinson v. California, 370 U. S. 660 (1962), the Court considered a conviction under a California statute making it a criminal offense for a person to "be addicted to the use of narcotics." At Robinson's trial, it was developed that the defendant had been a user of narcotics. The trial court instructed the jury that "[t]o be addicted to the use of narcotics is said to be a status or condition, and not an act. It is a continuing offense, and differs from most other offenses in the fact that [it] is chronic, rather than acute; that it continues after it is complete, and subjects the offender to arrest at any time before he reforms." Id. at 370 U. S. 662-663. This Court reversed Robinson's conviction on the ground that punishment under the law in question was cruel and unusual, in violation of the Eighth Amendment of the Constitution as applied to the States through the Fourteenth Amendment. The Court noted that narcotic addiction is considered to be an illness, and that California had recognized it as such. It held that the State could not make it a crime for a person to be ill. [Footnote 4/28] Although Robinson had been sentenced to only 90 days in prison for his offense, it was beyond the power of the State to prescribe such punishment. As MR. JUSTICE STEWART, speaking for the Court, said: "[e]ven one day Page 392 U. S. 567

in prison would be a cruel and unusual punishment for the "crime" of having a common cold." 370 U.S. at 370 U. S. 667. Robinson stands upon a principle which, despite its subtlety, must be simply stated and respectfully applied, because it is the foundation of individual liberty and the cornerstone of the relations between a civilized state and its citizens: criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change. In all probability, Robinson, at some time before his conviction, elected to take narcotics. But the crime, as defined, did not punish this conduct. [Footnote 4/29] The statute imposed a penalty for the offense of "addiction" -- a condition which Robinson could not control. Once Robinson had become an addict, he was utterly powerless to avoid criminal guilt. He was powerless to choose not to violate the law. In the present case, appellant is charged with a crime composed of two elements -being intoxicated and being found in a public place while in that condition. The crime, so defined, differs from that in Robinson. The statute covers more than a mere status. [Footnote 4/30] But the essential Page 392 U. S. 568 constitutional defect here is the same as in Robinson, for, in both cases, the particular defendant was accused of being in a condition which he had no capacity to change or avoid. The trial judge, sitting as trier of fact, found, upon the medical and other relevant testimony, that Powell is a "chronic alcoholic." He defined appellant's "chronic alcoholism" as "a disease which destroys the afflicted person's will power to resist the constant, excessive consumption of alcohol." He also found that "a chronic alcoholic does not appear in public by his own volition, but under a compulsion symptomatic of the disease of chronic alcoholism." I read these findings to mean that appellant was powerless to avoid drinking; that, having taken his first drink, he had "an uncontrollable compulsion to drink" to the point of intoxication, and that, once intoxicated, he could not prevent himself from appearing in public places. [Footnote 4/31] Page 392 U. S. 569 Article 477 of the Texas Penal Code is specifically directed to the accused's presence while in a state of intoxication, "in any public place, or at any private house except his own." This is the essence of the crime. Ordinarily, when the State proves such presence in a state of intoxication, this will be sufficient for conviction, and the punishment prescribed by the State may, of course, be validly imposed. But here, the findings of

the trial judge call into play the principle that a person may not be punished if the condition essential to constitute the defined crime is part of the pattern of his disease and is occasioned by a compulsion symptomatic of the disease. This principle, narrow in scope and applicability, is implemented by the Eighth Amendment's prohibition of "cruel and unusual punishment," as we construed that command in Robinson. It is true that the command of the Eighth Amendment and its antecedent provision in the Bill of Rights of 1689 were initially directed to the type and degree of punishment inflicted. [Footnote 4/32] But, in Robinson, we recognized that "the principle that would deny power to exact capital punishment for a petty crime would also deny power to punish a person by fine or imprisonment for being sick." 370 U.S. at 370 U. S. 676 (MR. JUSTICE DOUGLAS, concurring). [Footnote 4/33] The findings in this case, read against the background of the medical and sociological data to which I have referred, compel the conclusion that the infliction upon appellant of a criminal penalty for being intoxicated in Page 392 U. S. 570 a public place would be "cruel and inhuman punishment" within the prohibition of the Eighth Amendment. This conclusion follows because appellant is a "chronic alcoholic" who, according to the trier of fact, cannot resist the "constant excessive consumption of alcohol" and does not appear in public by his own volition, but under a "compulsion" which is part of his condition. I would reverse the judgment below. [Footnote 4/1] I do not understand the relevance of our knowing "very little about the circumstances surrounding the drinking bout which resulted in this conviction, or about Leroy Powell's drinking problem." (Opinion of MARSHALL, J., ante at 392 U. S. 521-522). We do not "traditionally" sit as a trial court, much less as a finder of fact. I submit that we must accept the findings of the trial court as they were made, and not as the members of this Court would have made them had they sat as triers of fact. I would add, lest I create a misunderstanding, that I do not suggest in this opinion that Leroy Powell had a constitutional right, based upon the evidence adduced at his trial, to the findings of fact that were made by the

county court; only that, once such findings were, in fact, made, it became the duty of the trial court to apply the relevant legal principles and to declare that appellant's conviction would be constitutionally invalid. See infra at 392 U. S. 567-570. I confess, too, that I do not understand the relevance of our knowing very little "about alcoholism itself," given what we do know -- that findings such as those made in this case are, in the view of competent medical authorities, perfectly plausible. See infra at392 U. S. 560-562. [Footnote 4/2] It is not foreseeable that findings such as those which are decisive here -- namely, that the appellant's being intoxicated in public was a part of the pattern of his disease and due to a compulsion symptomatic of that disease -- could or would be made in the case of offenses such as driving a car while intoxicated, assault, theft, or robbery. Such offenses require independent acts or conduct, and do not typically flow from, and are not part of, the syndrome of the disease of chronic alcoholism. If an alcoholic should be convicted for criminal conduct which is not a characteristic and involuntary part of the pattern of the disease as it afflicts him, nothing herein would prevent his punishment. [Footnote 4/3] The term has been variously defined. The National Council on Alcoholism has defined "alcoholic" as "a person who is powerless to stop drinking and whose drinking seriously alters his normal living pattern." The American Medical Association has defined alcoholics as "those excessive drinkers whose dependence on alcohol has attained such a degree that it shows a noticeable disturbance or interference with their bodily or mental health, their interpersonal relations, and their satisfactory social and economic functioning." For other common definitions of alcoholism, see Keller, Alcoholism: Nature and Extent of the Problem, in Understanding Alcoholism, 315 Annals 1, 2 (1958); O. Diethelm, Etiology of Chronic Alcoholism 4 (1955); T. Plaut, Alcohol Problems -- A Report to the Nation by the Cooperative Commission on the Study of Alcoholism 39 (1967) (hereafter cited as Plaut), Aspects of Alcoholism 9 (1963) (published by Roche Laboratories); The Treatment of Alcoholism -- A Study of Programs and Problems 8 (1967) (published by the Joint Information Service of the American Psychiatric Association and the National Association for Mental Health) (hereafter cited as The Treatment of Alcoholism); 2 R. Cecil & R. Loeb, A Textbook of Medicine 1620, 1625 (1959).

[Footnote 4/4] It ranks among the top four public health problems of the country. M. Block, Alcoholism -- Its Facets and Phases (1962). [Footnote 4/5] American Medical Association: Report of Reference Committee on Medical Education and Hospitals, Proceedings of the House of Delegates, Seattle, Wash., Nov. 27-29, 1956, p. 33; 163 J.A.M.A. 52 (1957) [Footnote 4/6] See generally E. Jellinek, The Disease Concept of Alcoholism (1960). [Footnote 4/7] See, e.g., H. Haggard & E. Jellinek, Alcohol Explored (1942); O. Diethelm, Etiology of Chronic Alcoholism (1955); A. Ullman, To Know the Difference (1960); D. Pittman & C. Snyder, Society, Culture, and Drinking Patterns (1962). [Footnote 4/8] See Alcoholism, Public Intoxication and the Law, 2 Col.J.Law & Soc.Prob. 109, 113 (1966). [Footnote 4/9] See Alcohol and Alcoholism 24-28 (published by the Public Health Service of the U.S. Department of Health, Education, and Welfare). "Although many interesting pieces of evidence have been assembled, it is not yet known why a small percentage of those who use alcohol develop a destructive affinity for it." The Treatment of Alcoholism 9. [Footnote 4/10] See E. Jellinek, The Disease Concept of Alcoholism 35-41 (1960). [Footnote 4/11]

Alcoholism 3 (1963) (published by the Public Health Service of the U.S. Department of Health, Education, and Welfare). See also Bacon, Alcoholics Do Not Drink, in Understanding Alcoholism, 315 Annals 55-64 (1953). [Footnote 4/12] A. Ullman, To Know the Difference 22 (1960). [Footnote 4/13] In response to the question "can a chronic alcoholic be medically treated and returned to society as a useful citizen?", Dr. Wade testified as follows: "We believe that it is possible to treat alcoholics, and we have large numbers of individuals who are now former alcoholics. They themselves would rather say that their condition has been arrested, and that they remain alcoholics, that they are simply living a pattern of life, through the help of medicine or whatever source, that enables them to refrain from drinking and enables them to combat the compulsion to drink." [Footnote 4/14] The Treatment of Alcoholism 13. [Footnote 4/15] Id. at 13-26. See also Alcohol and Alcoholism 31-40; Plaut 53-85. [Footnote 4/16] See A. Ullman, To Know the Difference 173-191 (1960). [Footnote 4/17] For the most part, these laws and ordinances, like Article 477 of the Texas Penal Code, cover the offense of being drunk in a public place. See Task Force Report: Drunkenness 1 (1967) (published by The President's Commission on Law Enforcement and Administration of Justice) (hereafter cited as Task Force Report). [Footnote 4/18] Ibid. [Footnote 4/19]

See Alcoholism, Public Intoxication and the Law, 2 Col.J.Law & Soc.Prob. 109, 110 (1966). [Footnote 4/20] See Task Force Report 3. [Footnote 4/21] Id. at 1. [Footnote 4/22] F. Allen, The Borderland of Criminal Justice 8 (1964). It does not, of course, necessarily follow from the frequency of his arrests that a person is a chronic alcoholic. [Footnote 4/23] See D. Pittman & C. Gordon, Revolving Door: A Study of the Chronic Police Case Inebriate (1958). See also Pittman, Public Intoxication and the Alcoholic Offender in American Society, Appendix A to Task Force Report. Dr. Wade answered each time in the negative when asked: "Is a chronic alcoholic going to be rehabilitated by simply confining him in jail without medical attention?" "Would putting a chronic alcoholic in jail operate to lessen his desire for alcohol when he is released?" "Would imposing a monetary fine on a chronic alcoholic operate to lessen his desire for alcohol?" [Footnote 4/24] See, e.g., MacCormick, Correctional Views on Alcohol, Alcoholism, and Crime, 9 Crime & Delin. 15 (1963). [Footnote 4/25] See, e.g., Murtagh, Arrests for Public Intoxication, 35 Fordham L.Rev. 1 (1966). [Footnote 4/26] M. Guttmacher & H. Weihofen, Psychiatry and the Law 319 (1952). [Footnote 4/27]

F. Allen, The Borderland of Criminal Justice 9 (1964). [Footnote 4/28] "We would forget the teachings of the Eighth Amendment if we allowed sickness to be made a crime and permitted sick people to be punished for being sick. This age of enlightenment cannot tolerate such barbarous action." 370 U.S. at 370 U. S. 678 (DOUGLAS, J., concurring). [Footnote 4/29] The Court noted in Robinson that narcotic addiction "is apparently an illness which may be contracted innocently or involuntarily." Id. at 370 U. S. 667. In the case of alcoholism, it is even more likely that the disease may be innocently contracted, since the drinking of alcoholic beverages is a common activity, generally accepted in our society, while the purchasing and taking of drugs are crimes. As in Robinson, the State has not argued here that Powell's conviction may be supported by his "voluntary" action in becoming afflicted. [Footnote 4/30] In Robinson, we distinguished between punishment for the "status" of addiction and punishment of an "act": "This statute . . . is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the 'status' of narcotic addition a criminal offense, for which the offender may be prosecuted 'at any time before he reforms.' California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there." Id. at 370 U. S. 666. [Footnote 4/31] I also read these findings to mean that appellant's disease is such that he cannot be deterred by Article 477 of the Texas Penal Code from drinking to excess and from appearing in public while intoxicated. See n. 23, supra.

Finally, contrary to the views of MR. JUSTICE WHITE, ante at 392 U. S. 549-551, I believe these findings must fairly be read to encompass the facts that my Brother WHITE agrees would require reversal, that is, that, for appellant Powell, "resisting drunkenness" and "avoiding public places when intoxicated" on the occasion in question were impossible. Accordingly, in MR. JUSTICE WHITE's words, "[the] statute is, in effect, a law which bans a single act for which [he] may not be convicted under the Eighth Amendment -- the act of getting drunk." In my judgment, the findings amply show that "it was not feasible for [Powell] to have made arrangements to prevent his being in public when drunk, and that his extreme drunkenness sufficiently deprived him of his faculties on the occasion in issue." [Footnote 4/32] See, e.g., Trop v. Dulles, 356 U. S. 86 (1958); Weems v. United States, 217 U. S. 349(1910). See generally Note, The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv.L.Rev. 635, 636-645 (1966). [Footnote 4/33] Convictions of chronic alcoholics for violations of public intoxication statutes have been invalidated on Eighth Amendment grounds in two circuits. See Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966); Driver v. Hinnant, 356 F.2d 761 (C.A.4th Cir.1966).

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G.R. No. L-35748

December 14, 1931

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. ROMANA SILVESTRE and MARTIN ATIENZA, defendants-appellants. Teofilo Mendoza for appellants. Attorney-General Jaranilla for appellee.

VILLA-REAL, J.: Martin Atienza and Romana Silvestre appeal to this court from the judgment of the Court of First Instance of Bulacan convicting them upon the information of the crime of arson as follows: The former as principal by direct participation, sentenced to fourteen years, eight months, and one day of cadena temporal, in accordance with paragraph 2 of article 550, Penal Code; and the latter as accomplice, sentenced to six years and one day ofpresidio mayor; and both are further sentenced to the accessories of the law, and to pay each of the persons whose houses were destroyed by the fire, jointly and severally, the amount set forth in the information, with costs. Counsel appointed by the court to defend the accused- appellants de oficio, after delivering his argument, prayed for the affirmance of the judgment with reference to the appellant Martin Atienza, and makes the following assignments of error with reference to Romana Silvestre, to wit: 1. The lower court erred in convincing Romana Silvestre as accomplice of the crime charged in the information. 2. Finally, the court erred in not acquitting said defendant from the information upon the ground of insufficient evidence, or at the least, of reasonable doubt. The following facts were proved at the hearing beyond a reasonable doubt: Romana Silvestre, wife of Domingo Joaquin by her second marriage, cohabited with her codefendant Martin Atienza from the month of March, 1930, in the barrio of Masocol, municipality of Paombong, Province of Bulacan. On May 16, 1930, the complaining husband, Domingo Joaquin, filed with the justice of the peace for that municipality, a sworn complaint for adultery, supported by affidavits of Gerardo Cabigao and Castor de la Cruz (Exhibit B). On the same date, May 16, 1930, the said accused were arrested on a warrant issued by said justice of the peace. On the 20th of the month, they were released on bail, each giving a personal bond of P6,000. Pending the preliminary investigation of the case, the two defendants begged the municipal president of Paombong, Francisco Suerte Felipe, to speak to the complaint, Domingo Joaquin, urging him to withdraw the complaint, the two accused binding themselves to discontinue cohabitation, and promising not to live again in the barrio of Masocol; Martin Atienza voluntarily signed the promise (Exhibit A). The municipal president transmitted the defendants' petition to the complaining husband, lending it his support. Domingo Joaquin acceded to it, and on May 20, 1930, filed a motion for the dismissal of his complaint. In consideration of this petition, the justice of the peace of Paombong dismissed the adultery case commenced against the accused, and cancelled the bonds given by them, with the costs against the complainant.

The accused then left the barrio of Masocol and went to live in that of Santo Nio, in the same municipality of Paombong. About November 20, 1930, the accused Romana Silvestre met her son by her former marriage, Nicolas de la Cruz, in the barrio of Santo Nio, and under pretext of asking him for some nipa leaves, followed him home to the village of Masocol, and remained there. The accused, Martin Atienza, who had continued to cohabit with said Romana Silvestre, followed her and lived in the home of Nicolas de la Cruz. On the night of November 25, 1930, while Nicolas de la Cruz and his wife, Antonia de la Cruz, were gathered together with the appellants herein after supper, Martin Atienza told said couple to take their furniture out of the house because he was going to set fire to it. Upon being asked by Nicolas and Antonia why he wanted to set fire to the house, he answered that that was the only way he could be revenged upon the people of Masocol who, he said, had instigated the charge of adultery against him and his codefendant, Romana Silvestre. As Martin Atienza was at that time armed with a pistol, no one dared say anything to him, not even Romana Silvestre, who was about a meter away from her codefendant. Alarmed at what Martin Atienza had said, the couple left the house at once to communicate with the barrio lieutenant, Buenaventura Ania, as to what they had just heard Martin Atienza say; but they had hardly gone a hundred arms' length when they heard cries of "Fire! Fire!" Turning back they saw their home in flames, and ran back to it; but seeing that the fire had assumed considerable proportions, Antonia took refuge in the schoolhouse with her 1 year old babe in her arms, while Nicolas went to the home of his parents-inlaw, took up the furniture he had deposited there, and carried it to the schoolhouse. The fire destroyed about forty-eight houses. Tomas Santiago coming from the barrio artesian well, and Tomas Gonzalez, teacher at the barrio school of Masocol, and Felipe Clemente, an old man 61 years of age, coming from their homes, to the house on fire, saw Martin Atienza going away from the house where the fire started, and Romana Silvestre leaving it.
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As stated in the beginning, counsel appointed by this court to defend the accused-appellant de oficio, prays for the affirmance of the judgment appealed from with reference to defendant Martin Atienza. The facts related heretofore, proved beyond a reasonable doubt at the hearing, justify this petition of the de oficio counsel, and establish beyond a reasonable doubt said defendant's guilt of arson as charged, as principal by direct participation. With respect to the accused-appellant Romana Silvestre, the only evidence of record against her are: That, being married, she lived adulterously with her codefendant Martin Atienza, a married man; that both were denounced for adultery by Domingo Joaquin, Romana Silvestre's second husband; that in view of the petition of the accused, who promised to discontinue their life together, and to leave the barrio of Masocol, and through the good offices of the municipal president of Paombong, the complaining husband asked for the dismissal of the complaint; that in pursuance of their promise, both of the accused went to lived in the barrio of Santo Nio, in the same municipality; that under pretext for some nipa leaves from her son by her former marriage, Nicolas de la Cruz, who had gone to the barrio of Santo Nio, Romana Silvestre followed him to his house in the barrio of Masocol on November 23, 1930, and remained there; that her codefendant, Martin Atienza followed her, and stayed with his coaccused in the same house; that on the night of November 25, 1930, at about 8 o'clock, while all were gathered together at home after supper, Martin Atienza expressed his intention of burning the house as the only means of taking his revenge on the Masocol resident, who had instigated Domingo Joaquin to file the complaint for adultery against them, which compelled them to leave the barrio of Masocol; that Romana Silvestre listened to her codefendant's threat without raising a protest, and did not give the alarm when the latter set fire to the house. Upon the strength of these facts, the court below found her guilty of arson as accomplice. Article 14 of the Penal Code, considered in connection with article 13, defines an accomplice to be one who does not take a direct part in the commission of the act, who does not force or induce other to commit it, nor cooperates in the commission of the act by another act without which it would not

have been accomplished, yet cooperates in the execution of the act by previous or simultaneous actions. Now then, which previous or simultaneous acts complicate Romana Silvestre in the crime of arson committed by her codefendant Martin Atienza? Is it her silence when he told the spouses, Nicolas de la Cruz and Antonia de la Cruz, to take away their furniture because he was going to set fire to their house as the only means of revenging himself on the barrio residents, her passive presence when Martin Atienza set fire to the house, where there is no evidence of conspiracy or cooperation, and her failure to give the alarm when the house was already on fire? The complicity which is penalized requires a certain degree of cooperation, whether moral, through advice, encouragement, or agreement, or material, through external acts. In the case of the accused-appellant Romana Silvestre, there is no evidence of moral or material cooperation, and none of an agreement to commit the crime in question. Her mere presence and silence while they are simultaneous acts, do not constitute cooperation, for it does not appear that they encouraged or nerved Martin Atienza to commit the crime of arson; and as for her failure to give the alarm, that being a subsequent act it does not make her liable as an accomplice. The trial court found the accused-appellant Martin Atienza guilty of arson, defined and penalized in article 550, paragraph 2, of the Penal Code, which reads as follows: ART. 550. The penalty of cadena temporal shall be imposed upon:

2. Any person who shall set fire to any inhabited house or any building in which people are accustomed to meet together, without knowing whether or not such building or house was occupied at the time, or any freight train in motion, if the damage caused in such cases shall exceed six thousand two hundred and fiftypesetas. While the defendant indeed knew that besides himself and his codefendant, Romana Silvestre, there was nobody in De la Cruz's house at the moment of setting fire to it, he cannot be convicted merely arson less serious than what the trial court sentenced him for, inasmuch as that house was the means of destroying the others, and he did not know whether these were occupied at the time or not. If the greater seriousness of setting fire to an inhabited house, when the incendiary does not know whether there are people in it at the time, depends upon the danger to which the inmates are exposed, not less serious is the arson committed by setting fire to inhabited houses by means of another inhabited house which the firebrand knew to be empty at the moment of committing the act, if he did not know whether there were people or not in the others, inasmuch as the same danger exists. With the evidence produced at the trial, the accused-appellant Martin Atienza might have been convicted of the crime of arson in the most serious degree provided for in article 549 of the Penal Code, if the information had alleged that at the time of setting fire to the house, the defendant knew that the other houses were occupied, taking into account that barrio residents are accustomed to retire at the tolling of the bell for the souls in purgatory, i.e., at 8 o'clock at night. For all the foregoing considerations, we are of the opinion and so hold, that: (1) Mere passive presence at the scene of another's crime, mere silence and failure to give the alarm, without evidence of agreement or conspiracy, do not constitute the cooperation required by article 14 of the Penal Code for complicity in the commission of the crime witnessed passively, or with regard to which one has kept silent; and (2) he who desiring to burn the houses in a barrio, without knowing

whether there are people in them or not, sets fire to one known to be vacant at the time, which results in destroying the rest, commits the crime of arson, defined and penalized in article 550, paragraph 2, Penal Code. By virtue wherefore, the judgment appealed from is modified as follows: It is affirmed with reference to the accused-appellant Martin Atienza, and reversed with reference to the accused-appellant Romana Silvestre, who is hereby acquitted with one-half of the costs de oficio. So ordered. Avancea, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez, and Imperial, JJ., concur.