Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos.

L-39270 and L-39271 October 30, 1934 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. FELIX GAYRAMA, defendant-appellant. Ruperto Kapunan for appellant. Office of the Solicitor General Hilado for appellee. DIAZ, J.: Felix Gayrama was charged in the Court of First Instance of Leyte in t wo cases with murder with assault upon agents of persons in authority, the victi m in the former case being policeman Placido Delloro (criminal case No. 8922), a nd in the latter chief of police Fernando Corpin (criminal case No. 8923); with frustrated murder with assault upon an agent of persons in authority in another case (criminal case No. 8924), and furthermore with serious physical injuries in another (criminal case No. 8925). The accused was convicted in all said cases but the trial court declar ed him guilty only of homicide with assault upon agents of persons in authority in each of the former two cases and of slight physical injuries in the latter tw o. In the latter cases he was sentenced to pay a fine of P300 and to indemnity E ugenio Nierras in the sum of P192.70 (case No. 8924), and to two months of arres to mayor (case No. 8925), with costs; and in each of the former cases he was sen tenced to sixteen years of reclusion temporal with the corresponding accessories of the law, and to indemnify the heirs of each of his victims in the sum of P1, 000 also with costs. He did not appeal from the sentence imposing upon him the p enalties of fine and arresto mayor but appealed from that sentencing him to sixt een years of reclusion temporal with the accessories of the law plus indemnities in the sum of P1,000. In support of his appeal Felix Gayrama assigns in his brief six allege d errors as committed by the lower court in its decision and sentence in case No . 8923 (G.R. No. 39271): and five alleged errors as committed by it in its decis ion and sentence in case No. 8922 (G.R. No. 39270), which are stated as follows: (Criminal case No. 8923; G.R. No. 39271) The court a quo erred: I. In having declared that the accused appellant voluntarily and intentionally a ssaulted the deceased Fernando Corpin, although the wound that resulted in his d eath was actually and truly caused by an accident in the fight when both the acc used and the deceased, struggling for the possession of the weapon, fell to the ground because the deceased stumbled against a fallen coconut tree, and it was i n his fall that the injury was accidentally caused. II. Granting for the sake of argument that the wound in question had been the ef fect of an intentional aggression on the part of the accused, nevertheless, the court a quo erred in not considering that said act of the accused had been commi tted in legitimate self-defense as he was at that moment the subject of an unlaw ful aggression on the part of the deceased and several other persons who pursued and threw stones at him. III. The court, therefore, erred in not considering that all the requisites of a legitimate self-defense were present in this case. IV. The court a quo erred in declaring that the deceased Fernando Corpin was act ing as an agent of persons in authority during the incident in question. V. Even granting that the deceased was chief of police and that he was acting as such, that is, he was trying to arrest the accused at the time of the incident in question, nevertheless, the court a quo erred in not declaring that said dece ased exceeded his authority in unjustifiably assaulting the accused who was then fleeing not certainly to avoid arrest but from the mobs that were pursuing and throwing stones at him with danger to his life, one of which mobs was led by the deceased himself.

VI. The court a quo also erred in declaring the accused-appellant guilty of homi cide with assault upon agents of persons in authority and in imposing upon him t he penalty of reclusion temporal in its maximum period, without furthermore taki ng into consideration the presence of several mitigating circumstances, to wit: (1) unlawful aggression; (2) lack of provocation on the part of the defendant; ( 3) passion and obfuscation; and (4) voluntary surrender to the authorities, whic h circumstances, by their number and weight, produce the effect of reducing the penalty by two periods in the general scale. (Criminal case No. 8922; G.R. No. 39270) The court a quo erred: I. In not having taken into consideration the presence in this case of all the e xempting circumstances in favor of the accused-appellant who acted in legitimate self-defense. II. In having declared that the deceased policeman Delloro aimed his revolver at the accused-appellant "perhaps for the purpose of snatching the bolo from the l atter". III. If the deceased, as municipal policeman, was acting as such on said occasio n, the court, however erred: (a) in assuming that the accused-appellant, in assa ulting said deceased, knew said circumstance and (b) in not declaring that the d eceased acted with abuse of his authority. IV. The court, therefore, erred in declaring the accused guilty of the complex c rime of homicide with assault upon an agent of persons in authority. V. The court a quo also erred in imposing upon the accused the maximum period of reclusion temporal, without furthermore taking into consideration the presence of the very qualified mitigating circumstances, to wit: (1) unlawful aggression; (2) lack of provocation on the part of the accused; (3) passion and obfuscation ; and (4) voluntary surrender to the authorities, which produce the effect of re ducing the penalty by two periods in the general scale. The evidence for the prosecution and that for the defense agree on the following facts, to wit: that the chief of police Fernando Corpin received a ne cessarily mortal wound on his left side level with the stomach, which wound was caused by a bolo, piercing the abdominal cavity from side to side; that said wou nd resulted in Fernando Corpin's death two hours later; that policeman Delloro, in turn, received twelve wounds in various parts of his body, five of which were , as Fernando Corpin's wound, necessarily fatal, and resulted in said Delloro's death at the scene of the crime. The appellant, in open court, admitted having b een the author of the aggression and of the death of said two deceased, but defe nded himself, as he now defends himself in this instance, by alleging that he ha d merely acted in legitimate self-defense. The two crimes with which the appellant was charged were the climax of some encounters which took place at noon on, April 18, 1931, in the municipalit y of Biliran, Leyte, between Francisco Gayrama, a brother of said appellant, and Amado Aragon, on one side, and Higino Corpin, Simeon Rosales, Manuel Nierras an d others, on the other. On said date the registration of voters in the electoral census took place in the different election precints of said municipality. The electors therein were then divided into two factions: one in favor of the candid acy for municipal president of the then incumbent Eugenio Nierras who ran for re election and the other which, in turn, favored the candidacy of Francisco Tonele te who aspired for the same office. Inasmuch as the majority of the election inspectors of election precin ct No. 2, composed of Higino Corpin and Simeon Rosales of the Nierras faction, h ad rejected the application of electors Eustaquio Dincong and Remigio Aragon of the Tonelete faction, who were at that time accompanied by Francisco Gayrama, to be permitted to cast their votes with the aid of another person by reason of de fective eyesight, said inspectors engaged in a discussion, which at times became heated, with the other inspector Jose Napalit of the Tonelete faction, in the p resence not only of said Francisco Gayrama and those of his faction but also of those of the Nierras faction, due to the insistence of the former (Napalit) that said applications of the two electors in question should be favorably considere d. President Eugenio Nierras, who was informed of the incident, upon going to sa

id precinct sometime before noon on that day, gave orders to policeman Clodoaldo Abrigo, his brother, to arrest Francisco Gayrama if the latter should again go up into the precinct (the precinct to all appearances was in the upper story of a building), after Gayrama had been ordered to go down with his followers.lawphi 1.net While Francisco Gayrama and his followers were going home without havi ng attained the purpose which brought them to the election precinct, he told Ama do Aragon, almost shouting because he was sufficiently far from the latter to in form their candidate Francisco Tonelete of the result and incidents of their pet ition to the board of election inspectors. Inspector Higino Corpin, who was not far away because he was also on his way home with the other inspector Simeon Ros ales, thinking himself alluded to, challenged Francisco Gayrama to a fight forth with hitting the latter on the arm with his fist, and both grappled. They were s eparated by Amado Aragon who was near by, telling them not to fight because both of them as the others, were from Biliran. This intervention of Amado Aragon mus t not have been pleasing to Simeon Rosales for, approaching Aragon, he seized th e latter by the body and threw him to the ground. This incident having made thin gs worse, Higino Corpin ordered policeman Clodoaldo, who was near by, to arrest Francisco Gayrama who, in order to avoid being arrested, ran away followed by Am ado Aragon in the direction of the house of one Juan de Paz. They were pursued b y Higino Corpin, Simeon Rosales, policeman Abrigo and followers who were informe d of the incident while the latter were in the house of president Nierras. Manue l Nierras, son of said president, upon overtaking Francisco Gayrama, interceptin g him in order to block his way, caught Francisco Gayrama by the neck and one of the legs and lifting him in the air flung him to the ground thereby causing a d islocation of one arm. Amado Aragon, coming to Francisco Gayrama's defense, hit Manuel Nierras on the back with his fist and, seeing that things were going from bad to worse, seized a stake to defend himself from the aggression of Nierra's followers. Amado Aragon and Francisco Gayrama, taking advantage of the desistanc e rather than indecision, of the former from continuing to attack them, went on their way to take refuge in Francisco Gayrama's house. While the foregoing incident was taking place, the appellant whose tur n was to stay in the house of his other brother, Prudencio Gayrama, the Tonelete faction's candidate for vice-president, in order to prepare food for the electo rs of their faction, observed from the movement of various persons from one plac e to another that something extraordinary was taking place, and was furthermore informed by Crispin Barili that his brother Francisco Gayrama and Amado Aragon h ad been assaulted by many people. The appellant, upon going down from his brothe r Prudencio's house, carried a bolo on his belt as he had just slaughtered a pig , and he left the house in order make sure and see with his own eyes what was re ally happening to his brother Francisco. He arrived in front of Petronilo Jadulc o's house and as soon as he was seen by president Nierras, who had already been informed of the incident between the latter's followers on one side, and Francis co Gayrama and his followers on the other, said president Nierras approached him and asked him whether he had also come there to challenge the president and fol lowers to a fight. Without waiting for a reply, the president slapped him on the left cheek. Almost simultaneously Esteban Nierras, the president's brother, kic ked the appellant, felling him. When said appellant noted that the president was about to repeat the aggression by slapping him, he unsheated his bolo and slash ed the president on the posterior part of the left arm inflicting thereon a woun d 4 inches long, 3 inches wide and 1 inch deep. Said president, upon feeling him self wounded, cried for help saying that Felix Gayrama had wounded him, at the s ame time ordering his men and chief of police Fernando Corpin to arrest Gayrama. The appellant, after wounding the president, run away, pursued by chief of poli ce Fernando Corpin, Manuel Nierras, Godofredo Corpin, Clodoaldo Abrigo and other s who in their pursuit threw stones at said appellant, hitting and injuring him on various parts of the body. The stone which Fernando Corpin threw at the appel lant hit the latter on the right cheek, causing him to stagger for the moment, f or which reason said Fernando Corpin, the deceased chief of police, succeeded in overtaking him and holding him by both hands. Thus held, the appellant struggle

d to free himself from Fernando Corpin who, unfortunately stumbled against somet hing a fallen tree according to some witnesses and fell, exposing his left side. The appellant, taking advantage of this opportunity, plunged the bolo which he carried into Corpin's body, piercing his abdomen. The appellant immediately fled and in doing so came upon the deceased policeman Placido Delloro who, as he sho uted to the appellant: Justice! Justice! suggesting to the latter to surrender, discharged his revolver at the appellant missing him. The appellant, seeing said policeman and, striking the latter on the wrist with his bolo, made him drop hi s firearm. The policeman attempted to pick up his firearm from the ground but th e appellant shoved him and after he had fallen slashed him several times, with h is bolo, furthermore plunging it into the policeman's body until the latter died . The autopsy later disclosed that one of the wounds received by the deceased De lloro was inflicted on his right wrist. Before the acts with which the appellant is charged were committed, th ere were in the house of president Nierras about 50 or 60 of the latter's follow ers and some of them, upon seeing the appellant and thinking that he was trying to join his brother Francisco Gayrama and Amado Aragon in order to resist police man Clodoaldo Abrigo and his companions, such as Manuel Nierras and his follower s, who had received orders to arrest said Francisco Gayrama and Amado Aragon, th rew stones at said appellant forcing him to retreat and take another way until p resident Eugenio Nierras saw him and maltreated him as above stated. From the foregoing proven facts, the following questions arise: (1) Do es the appellant's act of killing chief of police Fernando Corpin constitute hom icide with assault upon an agent of persons in authority? (2) Does the appellant 's act of depriving policeman Placido Delloro of his life also constitute homici de with assault upon an agent of persons in authority? As to the first question, the evidence shows that Fernando Corpin was wearing a felt hat with a cord usually worn by chiefs of police as part of their uniform, a faded khaki shirt and also khaki pants. There is no question but tha t this uniform, which is undoubtedly a policeman's, was sufficient to call the a ppellant's attention to the fact that he was dealing with a peace officer. Furth ermore, the appellant himself knew Fernando Corpin to be the municipal chief of police. He assaulted said officer while the latter was performing his duties as such inasmuch as said chief of police had been ordered by president Eugenio Nier ras, his immediate superior, to arrest the appellant for having wounded said pre sident with his bolo, and furthermore because, as said chief of police had witne ssed the aggression, it was inevitable for him to make the arrest. The reason fo r this is that it is the duty of peace officers to arrest violators of the law n ot only when they are provided with the corresponding warrant of arrest, but als o when they are not provided with said warrant if the violation is committed in their own presence; and this duty extends even to cases the purpose of which is merely to prevent a crime about to be consummated. (U. S. vs. Bertucio, 1 Phil., 47; U. S. vs. Resaba, 1 Phil., 311; U. S. vs. Vallejo, 11 Phil., 193; U. S. vs. Santos, 36 Phil., 853.) This same power was authorized by rule 28 of the Provis ional Law for the application of the provisions of the old Penal Code, which was in force at the time the two complex crimes under consideration were committed; and from the provisions of article 124 of the Revised Penal Code, it may be rea sonably inferred that peace officers until now have such authority, notwithstand ing the fact that the former law has been repealed by article 367 of said Revise d Penal Code. It cannot be said that there was a previous unlawful aggression on the part of the deceased Fernando Corpin because the fact that he threw stones at t he appellant which the latter was running away was not entirely unjustified, tak ing into consideration the fact that the purpose of the deceased in so doing was to succeed in capturing and arresting the appellant who was escaping because he had assaulted municipal president Eugenio Nierras. It is not strange that the d eceased employed said means to detain the appellant because he was then entirely unarmed. If he had been armed with a revolver and had used it against the appel lant, his act under those circumstances would have been fully justified. There is not the least doubt but that there was no reasonable necessit

y of the means employed by the appellant to repel Fernando Corpin's aggression b ecause the evidence shows that there was not even any aggression from which he h ad to defend himself and that the fact of holding a person by the hands in order to place him under arrest is not the aggression referred to in the law constitu ting one of the elements of legitimate self-defense. At any rate there was absol utely no necessity for the appellant to use his bolo because the deceased was un armed, it being evident, therefore, that there was no proportion between the agg ression even granting by way of a hypothesis that such an aggression existed and the means employed to repel it, particularly because said deceased had fallen t o the ground. As regards the deceased Placido Delloro, the evidence shows that he wa s on guard in the municipal building when he was informed of the aggression comm itted by the appellant on municipal president Eugenio Nierras and chief of polic e Fernando Corpin. As soon as he had received the municipal president's order to capture said appellant, he left his post in order to comply with said order and , before discharging his revolver at the appellant, he made himself known as a p eace officer by shouting to said appellant, Justice! Justice! for the purpose of suggesting to the latter to surrender. Inasmuch as the appellant would not stop but instead continued to run toward him, bolo in hand, said policeman prepared to fire another shot at the appellant and it was while he was in this position t hat the appellant rushed at him to strike him on the wrist of his hand holding t he revolver, forcing him to drop said weapon. While the deceased Delloro was try ing to pick up said revolver with his left hand, the appellant shoved him, felli ng him to the ground, and forthwith repeatedly struck him with his (appellant's) bolo until he died. The record discloses , although it does not so state clearly, that the place where the policeman dropped his revolver by reason of the bolo wound infl icted on his wrist, was quite a distance from where he was killed by said appell ant, which fact leads us to the conclusion that when said appellant repeatedly s truck the deceased with his bolo, all danger that might have come from said dece ased had already ceased and therefore there was no necessity of killing him. Under the circumstances when policeman Delloro suggested to the appell ant to surrender by shouting to him, Justice! Justice! he was justified in firin g the shot from which the appellant claims to have defended himself with his bol o because it was evident that the case involved the detention of a man who had c ommitted two crimes, one on the person of municipal president Eugenio Nierras an d the other on that of chief of police Fernando Corpin, which crimes were both s erious in nature. Furthermore, said deceased reasonably believed that the appell ant, being armed, might injure more persons, taking into consideration the strai ned relations between the followers of the two rival political factions in Bilir an. Now then, inasmuch as this court is already convinced that the appella nt committed the two complex crimes of homicide with assault with which he was c harged, the next question to be decided is that which concerns the penalty or pe nalties which should be imposed upon him. Article 89 of the old Penal Code, which was still in force when the tw o crimes in question were committed, provides that the penalty for the more seri ous crime, the same to be applied in its maximum period, should be imposed upon a person found guilty of a complex crime. Homicide is punished in said Code with reclusion temporalto its full extent, and that of assault upon an agent of pers ons in authority with prision correccional in its medium period to prision mayor in its minimum period and a fine of not less than 625 and not more than 6,250 p esetas. This seems to justify the imposition upon the appellant, in both cases, of the penalty corresponding to homicide, in its maximum period, that is, from s eventeen years, four months and one day to twenty years of reclusion temporal, w hich penalty is exactly the same as that prescribed in article 48, in connection with article 249, of the Revised Penal Code. Inasmuch as the mitigating circumstances of obfuscation, lack of instr uction and voluntary surrender to the authorities should be taken into considera tion in favor of the accused on the ground that the evidence shows that he scarc

ely knows how to write his name and that the voluntarily surrendered to the prov incial fiscal of Leyte on the day following the incidents under consideration, s hould his penalty be necessarily fixed at seventeen years, four months and one d ay of reclusion temporal with the corresponding accessories and the indemnity pr ovided in the appealed judgment? Undoubtedly not, because it is a rule that when an act is attended by two or more mitigating circumstances with no aggravating circumstance to change their value, the penalty next lower to that prescribed by law should be imposed upon the accused in the period that the court may deem ap plicable, according to the number and nature of such circumstances. (Rule 5 of a rticle 64 of the Revised Penal Code, which is the same as rule 5 of article 81 o f the old Penal Code, as amended by Act No. 2298.) By virtue of said rule, the penalty which should be imposed upon the a ccused is the one next lower toreclusion temporal in its maximum period which is no other than reclusion temporal in its medium period. This is evident, taking into consideration rule 5 of article 61 of said Revised Penal Code, which is lit erally rule 5 of article 75 of the old Penal Code. Said rule reads as follows: When the law prescribes a penalty for a crime in some manner not speci ally provided for in the four preceding rules, the courts, proceeding by analogy , shall impose corresponding penalties upon those guilty as principals of the fr ustrated felony, or of attempt to commit the same, and upon accomplices and acce ssories. The four rules to which rule 5 refers read as follows: 1. When the penalty prescribed for the felony is single and indivisible, the pen alty next lower in degree shall be that immediately following that indivisible p enalty in the scale prescribed in article 70 of this Code. 2. When the penalty prescribed for the crime is composed of two indivisible pena lties, or of one or more divisible penalties to be imposed to their full extent, the penalty next lower in degree shall be that immediately following the lesser of the penalties prescribed in the above mentioned scale. 3. When the penalty prescribed for the crime is composed of one or two indivisib le penalties and the maximum period of another divisible penalty, the penalty ne xt lower in degree shall be composed of the medium and minimum periods of the pr oper divisible penalty and the maximum period of that immediately following in s aid scale. 4. When the penalty prescribed for the crime is composed of several periods, cor responding to different divisible penalties, the penalty next lower in degree sh all be composed of the period immediately following the minimum prescribed and o f the two next following, which shall be taken from the penalty prescribed, if p ossible; otherwise, from the penalty immediately following in the above mentione d scale. It will be seen from said four rules that the appellant's case does no t fall directly under any of them. It follows, therefore, that the question shou ld be determined by proceeding by analogy to rule 4, in conformity with said rul e 5. And it should be so because the penalty of reclusion temporal in its maximu m period is divisible into three periods, the duration of the maximum period the reof being from nineteen years, one month and eleven days to twenty years; that of the medium period from eighteen years, two months and twenty-one days to nine teen years, one month and ten days, and that of the minimum period from seventee n years, four months and one day to eighteen years, two months and twenty days. Such procedure is expressly authorized in article 82 of the Old Penal Code. Said article reads as follows: In cases in which the penalty prescribed by law is not composed of thr ee periods, the courts shall apply he rules contained in the foregoing article, dividing into three equal portions the time included in the penalty prescribed, and forming one period of each of the three portions. There can be no doubt but that the penalty prescribed by law for the c rimes committed by the appellant isreclusion temporal in its maximum period, on the ground that it is so expressly provided in said article 89 of the old Penal Code or article 48 of the Revised Penal Code. In the case of People vs. Co Pao ( 58 Phil., 545), this court, notwithstanding what has been stated in the case of

United States vs. Fuentes (4 Phil., 404), held that the penalty next lower to pr ision mayor in its maximum period is prision mayor in its medium period. Without repeating the reasons stated therein and proceeding by analogy, taking into con sideration said rule 5 of article 75 of the old Penal Code (article 61, rule 5, of the Revised Penal Code), this court is of the opinion that the penalty which should be imposed upon the appellant in each of the two cases under consideratio n, is reclusion temporal in its medium period, or fourteen years, eight months a nd one day, which is the minimum of said penalty, due to the weight and number o f the attendant mitigating circumstances in his favor, which are lack of instruc tion, passion or obfuscation and voluntary surrender to the authorities; and in order to grant him the benefits of Act No. 4103, the minimum of said penalty of fourteen years, eight months and one day would have to be fixed at twelve years and one day because, following the rule already stated, the penalty next lower t o reclusion temporal in its medium period is correctly reclusion temporal in its minimum period. Wherefore, with the modification that the appellant is sentenced in ea ch of said cases Nos. 8922 and 8923 of the Court of First Instance of Leyte (G.R . Nos. 39270 and 39271, respectively), to the indeterminate penalty of from twel ve years and one day to fourteen years, eight months and one day of reclusion te mporal, and to indemnify the heirs of the deceased Fernando Corpin and Placido D elloro in the sum of P1,000, the appealed judgment is affirmed in all other resp ects, with costs against the appellant. So ordered. Street, Abad Santos, Hull and Vickers, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC DECISION October 10, 1933 G.R. No. L-38329 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. CO PAO (alias JOSE R. MATEO, alias JOSE CO TINGPO, alias ONG BUN), defendant-app ellant. Manuel Camus for appellant. Office of the Solicitor-General Hilado and Acting Solicitor-General Pea for appel lee. Vickers, J.: This is an appeal from the following decision of Judge Francisco Santamaria of t he Court of First Instance of Manila: Oidas las pruebas el Juzgado encuentra probado que en la noche del 3 de agosto d e este ao, el acusado en esta causa compro de la tienda de Cheng Dy, situated en al calle Lavezares No. 913, Manila, carne de cerdo y huevos por valor de P0.30 y pago el papel moneda, Exhibit A, falsificado y aparentando ser un papel moneda de P10 de los expedidos por el Banco de las Islas Filipinas, y el dueo de la tien da Cheng Dy entrego al acusado el cambio del Exhibit A, o sea la suma de P9.70, y el chino, dueo de la tienda, sin sospecha alguna, guardo del Exhibit A e su caj on, El 5 del mismo mes de agosto de este ao, otra vez el acusado volvio a la tien da de Cheng Dy trayendo otro billete de P10 y, despues de hacer su compra, recib io del dueo de la tienda la suma de P9.50 como cambio del billete de P10. Como de spues y en la misma fecha el dueo de la tienda necesitara dinero para cambiar, en vio a uno de sus dependientes para que el papel moneda de P10 entregado otra tie nda y el empleado volvio con la informacion de que el papel era falsificado. Ent onces el dueo de la tiendaque al acusado y le devolvio a billete diciendole que e ra falsificado y el acusado prometio que el dia siguiente devolveria el primer b illete entragado a el por el acusado, el Exhibit A, que lo tenia guardado, fuera tambien falsificado, dicho dueo de la tienda se enfado y denuncio a la policia e l hecho, entregando el papel moneda Exhibit A, el cual resulta ser un papel mone da falsificado, segun la declaracion de Adrians Rodenas, cajero auxiliar de la T esoreria Insular. Denunciado por el dueo de la tienda Cheng Dy, el policia Maneja

, a indicacion de Cheng Dy, arresto al acusado y estando informado de que el acu sado tenia en su poder otro billete falsificado de P10, procedo a su registro y solamente encontro el Exhibit B, que es la suma de P7.05 en papel moneda y moned as, todos legitimos. En que defensa el acusado en esta causa nego habier ido a la tienda de Cheng Dy y pagado las compras que hizo en dicha tienda con el papel moneda Exhibit A, y p ara enervar de algun modo las declaraciones de los chinos, los primeros testigos de la acusacion en esta causa, el acusado dijo queel 1.0 de agosto de este ao, e stuvo comiendo en la tienda de Cheng Dy y entonces llegaron policias con el fin de arrestar a dos chinos de la tienda, acusados de servir al publico sin estar v estidos de acuerdo con la ordenanza, y entonces el acusado dijo a los de la tien da que no debian esperar ser arrestados, sino que debieron haber comparecido en el Juzgado Municipal, y con este motivo los de la tienda se enfadaron diciendole que el ecusado no habia meterse en lo que no le importaba. Aunque negado por el acusado es para el Juzgado hecho cierto lo declarado por lo s testigos de la acusacion Cheng Dy y Kao Tay Tee, y estos hechos declarados por los mencionados testigos constituyen una infraccion del articulo 168 del codigo penal Revisado, y de esta infraccion el Juzgado declara culpable al acusado en esta causa, a quien condenna a dos aos (2), cuatro meses (4) y un dia (1) de pris ion correccional, a pagar una multa de P1,000, con la correspondiente prision su bsidiaria, en caso de insolvencia, a indemnizar al chino Cheng Dy en la suma de P19.20, sufriendo tanbien la correspondiente prision subsidiaria, en caso de ins olvencia, y al pago de las costas. Se declara el decomiso del papel moneda falsificado de P10, Exhibit A, y la suma de P7.05, Exhibit B, decomisado por la policia en poder del acusado, debera ser aplicada a la indemnizacion concedida al chino Cheng Dy, cuando esta sentencia a dquiera caracter firme. Appellant's attorney de oficio makes the following assignments of error: I. The lower court erred in finding that the accused-appellant passed Exhibit A, a supposed counterfeit P10 Bank of Philippine Islands note, to the complaining witness, Cheng Dy (Cheng Li). II. The lower court erred in convicting that accused-appellant of crime charged in the information in spite of the fact that the evidence for the prosecution is utterly insufficient to sustain such a conviction and is honeycombed with mater ial contradictions and glaring inconsistencies. III. The lower court erred in not considering that the prosecution failed to pro ve that the accused-appellant knowingly used or had in his possession, with inte nt to use, the alleged false bank note Exhibit A. IV. The lower court erred in giving preponderance to the evidence for the prosec ution over that of the defense. V. Finally, the lower court erred in declaring the accused-appellant guilty of c rime in the information and in sentencing him to suffer two years, four months a nd one day of prision correccional and to pay a fine of P1,000, to indemnify Che ng Dy for the sum of P19.20, and costs. We find no merit in the errors assigned. A careful examination of record convinc es us of the guilt of the accused. The assumptions of the appellant's attorney as to the facts are not sustained by the evidence, and his conclusions are naturall y erroneous. The evidence fully sustains the findings of the trial judge. We sha ll discuss only one question, which is whether or not the accused knew that the bank note in question was a counterfeit when he made use of it. As the Solicitor -General points out, two days after the defendant used the counterfeit ten-peso note in question to pay the amount of 30 centavos and got as change P9.70, he de livered another counterfeit bill of the same denomination to the offended party in payment of an account of 50 centavos and received the difference of P9.50 in lawful money. The transaction was clearly a scheme to change counterfeit bank no tes for lawful money. When patrolman Medina tried to investigate the defendant, he refused to make any explanation of his possession of the counterfeit note, but stated that he would know what to say in court. If the accused had been unaware that Exhibit A was f alse, he would undoubtedly have immediately explained to the policeman the circu

mstances under which it came into his possession. The burden was on the defendan t in the trial to explain satisfactorily his possession of the counterfeit note. This he failed to do. The evidence shows further that the defendant had no occupation except that of a cting as agent for Chinese accused in the municipal court of Manila to secure la wyers for them. It is not likely that a person depending on such uncertain means of livelihood would proffer a ten-peso bank note every time he had occasion to pay the petty sum of 50 centavos of less. The trial judge sentenced the defendant to suffer two years, four months, and on e day of prision correccional, or the minimum of prision correccional in its med ium period. The Solicitor-General recommends the penalty of prision mayor in its medium period (from eight years and one day to ten years) in accordance with ar ticle 168, in relation to subparagraph 2 of article 166, of the Revised Penal Co de. The appellant is guilty of a violation of article 168 of the Revised Penal Code, which provides that a violation of it shall be punished by the penalty next low er in degree than that prescribed in article 166 and 167 (sera castigado con la pena inmediatamente inferior a la sealada en dichos articulos). Article 167 is no t applicable to the case at bar. For forgoing treasury or bank notes or other do cuments payable to bearer, importing and uttering such false or forged notes and documents, article 166 provides the following penalties: 1. By reclusion temporal in its minimum period and a fine not to exceed P10,000, if the document which has been falsified, counterfeited, or altered is an oblig ation or security of the United States or of the Philippine Islands; 2. By prision mayor in its maximum period and a fine not to exceed P5,000, if th e falsified or altered document is a circulating note issued by any banking asso ciation duly authorized by law to issue the same; 3. By prision mayor in its medium period and a fine not to exceed P5,000, if the falsified or counterfeited document was issued by a foreign government; 4. By prision mayor in its minimum period and a fine not to exceed P2,000, when the forged or altered document is a circulating note or bill issued by a foreign bank duly authorized therefor. The penalty applicable in the present case is that next lower than that provided in case 2 of article 166. Is it prision mayor in its medium period, as recommen ded by the Solicitor-General, or prision correccional in its maximum period, as stated in one of the leading commentaries on the Revised Penal Code, in accordan ce with the decision of this court in the case of the United States vs. Fuentes (4 Phil. 404)? In the present case the proper penalty is prision mayor in its me dium period. The rules for graduating penalties are found in article 61 of the R evised Penal Code. Rule 4 provides that when the penalty prescribed for the crime is composed of se veral periods, corresponding to different divisible penalties, the penalty next lower in degree shall be composed of the period immediately following the minimu m prescribed and of the two next following, which shall be taken from the penalt y prescribed, if possible; otherwise, from the penalty immediately following in the above mentioned scale. If, for example, the penalty is prision mayor in its medium period to reclusion temporal in its minimum period, the penalty next lower in degree will be prision correccional in its medium and maximum periods to prision mayor in its minimum period. Rule 5 provides that when the law prescribes a penalty for a crime in some manne r not specially provided for in the four preceding rules, the courts, proceeding by analogy. shall impose corresponding penalties upon those guilty as principal s of the frustrated felony, or of attempt to commit the same, and upon accomplic es and accessories. If the penalty in prision mayor in its medium and maximum periods, the penalty n ext lower in degree will be prision correccional in its maximum period to prisio n mayor in its minimum period. Reasoning by analogy, we hold that the penalty immediately inferior to prision m ayor in its maximum period is prision mayor in its medium period. There appears

to be no justification for jumping over the two penalties between prision mayor in its maximum period and prision correccional in its maximum period. On the other hand the decision of this court in the case of Fuentes, mentioned a bove, based on the decisions of the Supreme Court of Spain, is not applicable. In all those decisions the crime was robbery in an inhabited house, committed wi thout arms, the value of the property being less than 1,250 pesetas (500 pesetas in Spain), with the further circumstance that in one of these case the robbery was frustrated and in the others the accused was less than eighteen and over fif teen years of age. According to article 508 of the Penal Code (521 Penal Code of Spain) the penalty provided for robbery in an inhabited house, committed without arms, when the va lue of the property taken is less than 1,250 pesetas (500 pesetas in Spain), or when committed with arms and the value of the property taken is less than 1,250 pesetas (500 pesetas in Spain), is presidio correccional in its medium degree to presidio mayor in its minimum degree, said penalty to be imposed in the minimum degree if the robbery is committed without arms and the value of the property t aken is less than 1,250 pesetas. According to article 65 of the same Code (art. 66 of the Code of Spain), if the robbery is frustrated or if the accused is less than eighteen and over fifteen years of age, pursuant to article 85 (art. 86 of the Code of Spain), the next lower penalty should be imposed. Thus this penalty of presidio correccional in its medium degree to presidio mayor in its minimum degree had to be modified for two reasons, to wit, because the next lower penalt y should be imposed on the ground that the robbery was frustrated, or that the a uthor was less than eighteen and over fifteen years of age, and because it shoul d be imposed in its minimum degree for the reason that the robbery was committed without arms and the value of the property taken was less than 1,250 pesetas. What penalty should then be imposed under such circumstances? In the case of Fue ntes this court said: There is some conflict in the decisions of the Supreme cour t of Spain, as to what that penalty is, but it is now settled by the more recent decisions that the penalty immediately inferior to the medium grade of presidio correccional is the medium grade of arresto mayor. A review, however, of the dec isions of the Supreme Court of Spain referred to in the decision of this in the Fuentes case does not justify said pronouncement. In the first decision rendered on the subject (June 13, 1872) of the Supreme Cou rt of Spain it was held: 1st. That pursuant to the provisions of art. 521 of the Penal Code in force, rob bery in an inhabited place, committed without arms, when the value of the proper ty taken does not exceed 500 pesetas, is with the medium degree of presidio corr eccional; and that when this offense is frustrated, the corresponding penalty is the next lower in degree, in accordance with article 66 of said Code; and 2nd. That if the facts stated in the decision and established by the evidence sh ow that the accused is the author of a frustrated robbery involving less than 50 0 pesetas, committed without arms and without any aggravating or mitigating circ umstances, the trial court in imposing the penalty of 14 months of presidio corr eccional, acts in accordance with the provision of said Code; because, inasmuch as it prescribes as a penalty for the consummated crime only the medium degree o f said presidio correccional, and the penalty for frustrated robbery being the n ext lower in degree this penalty must be the minimum degree of presidio correcci onal, and not the penalty composed by this and the two other degrees of the next lower penalty, because this combination must be adopted when the penalty prescr ibed for the offense is composed of various degrees as provided in the article 7 6, Rule 4, of said Code, and not when composed of only one degree as in the pres ent case. However, in the subsequent decision of December 20, 1872 (as well as in the deci sions of July 5, 1872, September 26, 1872, and October 15, 1872) it was held: 1st. That article 521 of the Penal Code in force punishes consummated robbery, c ommitted with arms, when the amount involved is less than 500 pesetas, with mayo r in its minimum degree; 2nd. That the penalty next lower in degree to that imposed by law for consummate d crime is prescribed, under article 66, when the crime is frustrated, which in

the present case is arresto mayorin its medium degree to presidio correccional i n its minimum degree; 3rd. That inasmuch as the accused carried no arms for the perpetration of said f rustrated robbery, and the value of the property taken does not exceed 500 peset as, his penalty should be limited to the minimum degree resulting from the gradu ation of the penalty, because otherwise a difference would arise, to the prejudi ce of the author of the frustrated crime, should the law adopt it for consummate d offense in the latter part of said article 521; and 4th. That the trial court, in applying this rule and in imposing upon the accuse d four months of arresto for such crime, committed no error or violation of law to justify a reversal. As may be seen, the difference between the decision of June 13, 1872, and those rendered thereafter consists in that in the former the penalty was first reduced to its minimum degree, and then the penalty immediately inferior to it was impo sed, whereas in the other decisions the penalty immediately inferior in degree w as determined and then imposed in its minimum degree. Pursuant to the foregoing, the Supreme Court of Spain in imposing, in its decisi ons subsequent to June 13, 1872, the penalty of arresto mayor in its medium degr ee, did so not because this penalty was the next lower than presidio correcciona l in its medium degree, but because that is the minimum degree of the penalty of arresto mayor in its medium degree to presidio correccional in its minimum degr ee, which is the next lower penalty than presidio correccional in its medium deg ree to presidio mayor in its minimum degree. The penalty of prision mayor in its medium period must be divided into three equ al parts, and the medium thereof is from eight years, eight months and one day t o nine years and four months. For the foregoing reasons, the defendant and appellant is sentenced to suffer ei ght months and one day of prision mayor, to pay a fine of P10 and to indemnify t he offended party in the sum of P10, without subsidiary imprisonment in case of insolvency, and to pay the costs of both instances. As thus modified, the decision appealed from is affirmed. Avancea, C.J., Street, Abad Santos, and Butte, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-20651 October 25, 1923 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. ANTONIA PATRICIO, defendant-appellant. --------------------------G.R. No. L-20652 October 25, 1923 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. JOSE MALGANA ET AL., defendants. ANTONINA MANANGAN and JOSE MALGANA, appellants. Valentin J. Alcid for appellants. Attorney-General Villa-Real for appellee. STREET, J.: The appeal in case No. 20651 has been brought to reverse a judgment of the Court of First Instance of the Province of Tarlac, in case No. 2837 of said court, finding the appellant, Antonia Patricio, guilty of the offense of parric ide, and sentencing her to undergo the penalty of reclusion perpetua, with the a ccessories, prescribed in article 55 of the Penal Code, and to pay the costs of prosecution. The appeal in case No. 20652 has been brought to reverse a judgment of the same court in case No. 2868, declaring the appellants Jose Malgana and A ntonina Manangan accomplices in the crime of simple homicide, and sentencing the m to undergo imprisonment for eight years and one day, prision mayor, with the a

ccessories prescribed in article 61 of the Penal Code, and jointly and severally to indemnify the heirs of Bonifacio Malgana in the sum of P1,000, and severally to pay proportional costs of prosecution. Both of these prosecutions are based upon the unlawful killing of Boni facio Malgana, in which offense all of the appellants participated in the manner and to the extent presently to be described; and both causes have been submitte d in this court with combined briefs on the part of both prosecution and defense . The two cases will therefore be dealt with by us in a single opinion. It appears in evidence that prior to December 17, 1922, the deceased, Bonifacio Malgana, was living with his wife, the appellant Antonia Patricio, in the barrio of Balaoang, of the municipality of Paniqui, in the Province of Tarla c. The relations between the two spouses were not happy; and the wife, of the ag e of twenty-three years, had established illicit relations with Jose Malgana, of the age of twenty-one, and said to be her nephew, although probably such only b y marriage. As was but natural under these circumstances, Antonia entertained a deep aversion to her husband, Bonifacio Malgana, a feeling which was shared by A ntonia's mother, one Antonina Manangan, likewise an appellant in the second of t he causes now before us; and the two conspired together to procure Bonifacio's d estruction. To this end the two women, on a certain day near the middle of Decem ber, 1922, came to the house of Marcelo Miguel, a laborer residing in the same b arrio, and called for Marcelo. He happened to be away at the time but they await ed his return; and upon his arrival Antonia proposed, in the presence and hearin g of Antonina Manangan, to give him the sum of P20 if he would kill her husband. Marcelo refused to entertain the proposition, one reason being that Bonifacio w as Marcelo's uncle, and he says that he naturally had scruples an out killing a kinsman. However, the interview made its impression upon Marcelo's mind and upon seeing Antonina three or four days later at the house of a friend where a seath had occurred, Marcelo inquired of her where Bonifacio then was. Antonia replied that he had gone to Camiling to harvest palay. Not altogether reassured by this statement and fearing that Bonifacio had been foully dealt with, Marcelo commun icated his suspicions to Respicio Garbin. The latter told Bonifacio Ipabiado, wh o in turn communicated with the officer in charge of a Constabulary detachment t hen in Paniqui, Tarlac. An investigation was thereupon made which resulted in th e arrest of four persons upon suspicion of murder, namely, Antonia Patricio, Ant onina Manangan, Jose Malgana, and Domingo Bestro presently confessed and reveale d the facts connected with the murder. Acting upon this information the proper a uthorities went to the house where Bonifacio Malgana had lived and the body of t he deceased was exhumed at the spot that had been indicated by Domingo Bestro as the place of burial in the back yard. Upon this occasion all four of the suspec ts were present and they all admitted then, as well as other occasions, the fact that Bonifacio Malgana had been killed by them. The material facts relating to the commission of the deed are few, and they are these: On the morning of December 17, 1922, which was Sunday, Jose Mal gana and Domingo Bestro left the place where they lived together in the barrio o f Balaoang and went to the home of Bonifacio Malgana, the deceased, where they r emained during the day in the company of Antonina Manangan, Antonia Patricio and the deceased. When night came the deceased lay down and went to sleep, but the other four remained awake until about midnight when they approached and killed t he sleeper. Antonia Patricio began the deadly work by slipping a muffler around the victim's neck, after which she proceeded to strangulate him by drawing forci bly upon the ends. Meanwhile Jose Malgana violently pulled and mashed the testic les of the deceased, and Antonina Manangan and Domingo Bestro held his feet and head, respectively. Life was soon extinct, and the body was burried near the hou se before daylight, in an improvised grave in which the deceased was placed in a sitting posture. The hole was then filled with dirt and covered with debris, wh ich was burned. Finally green plants were set around or over the spot in order t o remove all signs of disturbance of the ground. When the body of the deceased w as exhumed a week later it was examined by a sanitary officer and showed evident signs of strangulation and of violent injury to the testicles. 1awph!l.net In view of the repeated confessions of the several accused, corroborat

ed by the discovery of the body upon information given by Domingo Bestro, and ot her circumstances, the guilt of the four accused persons is put beyond the possi bility of doubt; and it is equally clear that all four participated as principal s in the killing. Each of the four made written confessions which were acknowled ge by them severally before the justice of the peace. The trial judge quite unne cessarily ruled these confessions out on the ground that they had not been signe d by the declarants in the presence of the justice of the peace as stated in his jurat; but the repeated oral admissions are more than sufficient. Domingo Bestr o, who was used as a witness for the prosecution, and against whom the informati on was dismissed upon the motion of the fiscal in order that he might be thus us ed, naturally minimizes the extent of his own participation in the crime. But we are not here concerned with his case. The crime committed by Antonia Patricio is that of parricade, in the c ommission of which are to be appreciated the aggravating circumstances of known premeditation, treachery, nocturnity and the abuse of superior strength. The cri me committed by Antonina Manangan and Jose Malgana cannot be denominated parrici de, though they cooperated as principals in the killing of a person whom they kn ew to be the husband of their coaccused, Antonia Patricio; for it is established doctrine that a stranger who participates in the perpetration of parricide is n ot guilty of parricide but only of murder or homicide according to the factors p resent in the offense. (Decision of the supreme court of Spain of March 11, 1887 , 3 Viada, 8; 2 Hidalgo, Penal Code, 143.) The crime committed by Antonina Manan gan and Jose Malgana is therefore that of murder, qualified by treachery, in the commission of which are to be appreciated, as to both of these accused, the agg ravating circumstances of nocturnity, abuse of superior strength, and that the o ffense was committed in the dwelling of the deceased; and as to Antonina Mananga n is further to be appreciated the circumstance of known premeditation, since sh e accompanied Antonia Patricio on the mission to hire Marcelo Miguel to kill the deceased. We are not unmindful of the fact that, upon a close appreciation of th e aggravating circumstances present in this offense, nocturnity might be conside red to be sufficiently appreciated in the circumstance of treachery; but we cons ider this refinement out of place in connection with one of the most atrocious c rimes that has ever come to out notice. But even if the circumstance of nocturni ty were ignored the result would not be changed. In view of the character of the acts which are the subject of prosecut ion in this case and the formidable array of aggravating elements attendant upon the offense, all of the appellants merit the highest punishment which the law i mposes; and the Attorney-General accordingly recommends that all be sentenced to death. In this view the Chief Justice and Justices Johnson, Street, Avancea, and Romualdez concur; but inasmuch as Justices Malcolm, Villamor, and Johns do not approve the imposition of the death penalty, it is necessary to impose on all of the appellants the appropriate penalty next below that of death, as required by Act. No. 2726 of the Philippine Legislature. For the reasons stated the judgment in case G. R. No. 20651, sentencin g Antonia Patricio to undergo the penalty of reclusion perpetua, with the access ories prescribed in article 55 of the Penal Code, will be affirmed with costs; b ut the judgment in case G. R. No. 20652, adjudging Jose Malgana and Antonina Man angan to be merely accomplices in the crime of simple homicide will be reversed and in lieu thereof both are declared to be guilty of murder, and Jose Malgana w ill be sentenced to undergo the penalty of cadena perpetua, an Antonina Manangan to undergo the penalty of reclusion perpetua, each with the appropriate accesso ry penalties, and they will be required jointly and severally to indemnify the h eirs of the deceased in the sum of P1,000 and to pay their respective proportion of the costs of both instances. So ordered. Araullo, C.J., Johnson, Avancea, Malcolm, Villamor, Johns and Romualdez, JJ., con cur. People v. Patricio 46 PHIL 875

FACTS: On December 17, 1922, Jose Malgana and Domingo Bestro went to the house o f spouses Bonifactio Malgana and Antonia Patricio. Her mother, Antonina Manangan was also there with the spouses. When night came, Bonifacio went to sleep but t he other four remained awake. At about midnight, his wife began the deadly work by slipping a muffle around his neck. Jose violently pulled and mashed the testi cles of Bonifacio. While Antonina and Domingo held his feet and head respectivel y. The body was buried in a sitting position. ISSUE: Whether or not all who participated in killing Bonifacio be sentenced to death. RULING: The crime committed by Antonia Patricio is parricide, with aggravating c ircumstance of premeditation, treachery, nocturnity and the abuse of superior st rength and to undergo reclusion perpetua. Jose Malgana and Antonina Manangan to be merely accomplices in the crime of simple homicide and are declared guilty of murder. Jose Malgana, Antonia's paramour, will be sentenced to cadena perpetua an d Antonina Manangan to undergo the penalty of reclusion perpetua. Domingo Bestro , who was used as a witness for the prosecution, and against whom the informatio n was dimissed upon the motion of the fiscal in order that he might be thus used , naturally minimizes the extent of his own participation in the crime. But the court is not concerned with his case. Republic of the Philippines SUPREME COURT Manila EN BANC DECISION September 27, 1924 G.R. No. 21487 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. MAMERTO VALDELLON Y AFURONG, ET AL., defendants. MAMERTO VALDELLON Y AFURONG and PEDRO BAGABALDO, appellants. Sebastian, Pamatmat and Paredes, Buencamino & Yulo for appellants. Ostrand, J.: The defendants Mamerto Valdellon, Atanasio Valdellon, Gregorio Elbo and Pedro Ba gabaldo were accused of the crime of qualified theft, the information alleging t hat on or about and within the time comprised between the 15th and 16th days of S eptember, 192, in the City of Manila, Philippine Islands, the said accused, Mame rto Valdellon y Afurong and Julian Flora y Bolante, being clerks of the American Express Co., Inc., a concern duly authorized to transact business in the said C ity of Manila, conspiring together and helping one another, did then and there w illfully, unlawfully, and feloniously, with intent of gain, with serious breach of confidence and without the consent of the owner thereof, take, steal, and car ry away the following personal property belonging to the said American Express C o., Inc., to wit: One steel cash box, size 16 x 9 x 4, painted black containing money in cash cons isting of different denominations P9,234.35 One steel cash box, size 16 x 9 x 4, painted brown, containing paper money in ca sh of different denominations 92,500.00 One check of the Philippine National Bank representing 25.00 Currencies of different nationalities valued at 546.06 Miscellaneous chits for office transactions of the value of 82.20 Several American Express Co., Inc., drafts, traveler's checks, and check folders, valued at 3,400.00 to the damage and prejudice of the said owner, the said American Express Co., In

c., in the total sum of one hundred five thousand seven hundred eighty-seven pes os and sixty-one centavos (P105,787.61), equivalent to and of the value of P528, 938.05 pesetas, Philippine currency; that the said Atanasio Valdellon y Afurong, being a brother of his coaccused Mamerto Valdellon y Afurong, and without takin g direct part in the commission of the crime of qualified theft perpetrated by t he latter, on or about the dates aforementioned and sometime subsequent thereto, but before the filing of this information in the said City of Manila, Philippin e Islands, wilfully, unlawfully, and feloniously profited himself and assisted h is said coaccused Mamerto Valdellon y Afurong to profit by the effects of the cr ime, to wit, by then and there receiving, as said Atanasio Valdellon y Afurong d id in effect receive, part of the stolen money, knowing very well, as he did, th at the same was stolen; and that the said Gregorio Elbo and Pedro Bagabaldo with out likewise taking direct part in the commission of the said crime of qualified theft perpetrated by the said Mamerto Valdellon y Afurong and Julian Flora y Bo lante, on or about the dates aforementioned, to wit, the 15th and 16th days of S eptember, 1922, and sometime subsequent thereto, but before the filing of the pr esent information, in the said City of Manila, Philippine Islands, wilfully, unl awfully, and feloniously and knowingly concealed and destroyed checks and other papers by means of which the crime herein described as committee by Mamerto Vald ellon y Afurong and Julian Flora y Bolante could have been discovered. Upon arraignment all of the defendants pleaded not guilty. Atanasio Valdellon an d Gregorio Elbo were granted separate trials. After the testimony of the first w itness for the prosecution had been taken, the action was, upon motion of the fi scal, dismissed as to the defendant Julian Flora in order that he might be used as a witness for the prosecution. The court below found Mamerto Valdellon guilty as principal of the crime charged and sentenced him to suffer seven years, four months and one day of presidio mayor, with the accessory penalties prescribed b y law, to indemnify the American Express Co. in the sum of P105,787.61 and to pa y one-fifth of the costs. Pedro Bagabaldo was found guilty as an accessory after the fact and was sentenced to one year and one day of presidio correccional, wi th the accessory penalties, to indemnify the American Express Co. in the sum of P105,787.61, with subsidiary imprisonment in case of insolvency, and to pay onefifth of the costs. Both of the accused appeal to this court. The leading fact shown by the evidence may be briefly stated as follows: Mamerto Valdellon was a stenographer and confidential clerk in the Manila office of the American Express Co. and acted as amanuensis for Mr. Aubrey, the cashier. The H ongkong office of the company requested that it be given the combination of the Manila, office safe and Mr. Aubrey dictated to Valdellon a letter addressed to t he manager of the Hongkong office containing a description of the turns of the s afe combination but left the numbers blank to be filled in later on in ink. In f illing in the blanks Mr. Aubrey used a new blotter. The letter was afterwards re turned from Hongkong and upon receipt of it Mr. Aubrey tore it into pieces and t hrew them into the waste paper basket. Shortly thereafter Valdellon, with the as sistance of Julian Flora, a clerk in the same office, prepared the following let ter: FINANCIAL DEPARTMENT U. S. ARMY Office of the Disbursing Officer Corregidor, P. I. 14th of Sept., 1922. Subject: Encashment of one U. S. check No. 179225 for U. S. $44,980 or P89,960 To: American Express Co., Inc., 36 Escolta, Manila. GENTLEMEN: 1. This will serve to advise you that Mr. H. L. Hibsman, our authorized represen tative, will call at your office on Saturday morning at 8 sharp, September 16th, for encashment of one U. S. check No. 179225 in the sum of 44,980 dollars or ap proximately P89,960. Mr. Hibsman is arriving on a special launch Miley and will,

without fail, be at your office at the hour mentioned above. If possible, pleas e accommodate Mr. Hibsman the largest denominations, as this sum is to be paid t o a launch coming from Hongkong at 9:30 a. m., September 16th. 2. We wish to thank you in anticipation of your prompt attention. Very truly yours, Per E. M. BOULLARD Chief Clerk & Disbursing Officer (Sgd.) E. M. BOULLARD Major R. L. GROOVES, Q. M. C. emb. hgt. It is not disputed that the name H. L. Hibsman is fictitious. On the day before the commission of the robbery the letter was handed to Mr. Aubrey who, in compli ance with the request contained therein, withdrew the sum of P90,000 from the In ternational Banking Corporation and placed the same in the safe so as to have it ready for Hibsman in the morning of the following day. The next morning the safe was found open and it was discovered that not only the money withdrawn from the bank but also an additional sum in cash, drafts, and checks had been removed. It being evident that the crime had been committed by some member of the office force, suspicion was directed to Valdellon by reason of the fact that he had bee n in position to ascertain the combination of the safe from the letter written t o the Hongkong office and from the blotter used by Mr. Aubrey, and though allowe d to continue in his employment, he was kept under surveillance several months. In March, 1923, the witness Procopio Rebenque, who was then living in the house of Valdellon, saw Bagabaldo, Elbo and Valdellon's brother, Atanasio, in the house on several different occasions. The last time they were there the witness observ ed Bagabaldo and Atanasio burn some checks similar to Exhibit T, an American Exp ress Company traveller's check, while Elbo was occupied in counting large quantiti es of currency, an operation which lasted until very late in the evening. On the following morning Atanasio Valdellon, Bagabaldo and Elbo went away in an automo bile carrying with them all the money. The witness found a portion of a money or der which had not been entirely consumed by the fire and which he carried to a s ecret service agent by the name of Nelson. Some days afterwards Valdellon gave t he witness two letters for mailing, but instead of placing them in the mail the witness delivered them to Nelson. A number of other circumstances have been testified to by various witnesses. It thus appears that Atanasio Valdellon was found to be in possession of unusually large sums of money and that upon a search of his effects several American Expre ss Company traveller's check covers were found. The evidence against Valdellon is overwhelming and shows him guilty beyond a rea sonable doubt. Aside from the circumstances related and Julian Flora's testimony a s to the writing of the letter Exhibit C, the signature E. M. Boullard appearing i n that letter exhibits the characteristics of Valdellon's handwriting and leaves n o doubt whatever that he was the writer notwithstanding the fact that two so-cal led handwriting experts testified to the contrary. In regard to the defendant Bagabaldo, the proof is less voluminous but neverthel ess establishes his guilt beyond a reasonable doubt. It is true that the only di rect testimony against him is that of Procopio Rebenque, whose credibility has b een attacked by the defense, but his testimony is so conclusively corroborated b y Exhibit U-1 as to leave no doubt of its essential truthfulness. This exhibit i s one of the letters handed to Rebenque for mailing but delivered by him to dete ctive Nelson. The letter is in the handwriting of Mamerto Valdellon and reads as follows: MR. PEDRO BAGABALDO: DEAR SIR: I hereby remind you of your conversation of March 22d, so that you may send me the money immediately by registered mail, because I have come to an agr eement with the person from whom the instruments are to be taken. Keep the money well, for something wrong may happen to us. Send me money more fr equently, for I do not retain any amount at home, because I am afraid to keep mo ney there, as I am working, and put the money inside the big tube in order that

it may not be wet in the culvert. And tear the check remaining with you and put it on the fire, since it has no mo re value, and do not be spending the money, for if something should happen, we w ill spend that money in the litigation. And in case we are convicted, that same money will save us. That's all for the present. Respectfully, (Sgd.) MAMERTO VALDELLON: The letter was never received by Bagabaldo and counsel argues that it therefore is not admissible in evidence. In this counsel is mistaken. Rebenque's testimony e stablishes prima facie the existence of a conspiracy between Bagabaldo and the o ther accused and it is well-established rule that letters written or statements made by one coconspirator is admissible against the other. Corpus Juris, citing numberous authorities, says: Letters written by a conspirator in connection with the conspiracy are admissibl e against a coconspirator, although he was not present when they were written. T hus, where defendant and two others were charged with stealing certain indictmen ts, letters written by one of the defendant's alleged coconspirators expressing th e desire to get rid of the indictments were admissible against defendant. Even a letter which appears from its date to have been written prior to the formation of the conspiracy may be admitted, where it appears by other evidence that the d ate was a mistake and that it actually was written after the conspiracy was form ed. (16 C. J., pp. 664-5.) Counsel also argues that inasmuch as it does not appear that Bagabaldo was in co nfidential relations with the offended party, the penalty imposed by the court b elow is too severe. This point is well taken. The qualifying circumstance of bre ach of confidence which in the case of Valdellon justifies the imposition of a p enalty of one degree higher than that prescribed for simple theft does not apply to Bagabaldo, who was not in confidential relations with the offended party and who therefore should be punished as an accomplice in the commission of the crim e of simple theft only. (U. S. vs. Santos, 2 Phil., 669; U. S. vs. Maharaja Alim , 38 Phil., 1; 3 Viada, Codigo Penal, 447; 2 Hidalgo, 717-718.) The prison sentence imposed on the defendant Pedro Bagabaldo is therefore reduce d to three months of arresto mayor. In all other respects the judgment appealed from is affirmed, with the modification that the appellants jointly and severall y indemnify the American Express Company in the sum of P102,280.41, the defendan t Pedro Bagabaldo to suffer subsidiary imprisonment in case of insolvency. Each of the appellants will pay one-half of the costs of this instance. So ordered. Street, Malcolm, Avancea and Villamor, JJ., concur. Johnson and Romualdez, JJ., did not take part.