G.R. No. L-3565, People v. Nang Kay, 88 Phil.

515
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
April 20, 1951
G.R. No. L-3565
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
NANG KAY alias SY KEE, defendant-appellant.
Andres F. Santos for appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Esmeraldo Umali
for appellee.
MONTEMAYOR, J.:
In the Court of First Instance of Rizal, Nang Kay alias Sy Kee was charged with
illegal possession of firearms in that in his possession were found three grease
guns and two Thompson Submachine guns, and empty magazines, without the
necessary license. In court he appeared without counsel and upon being
arraigned, he pleaded guilty. He was sentenced to imprisonment for five (5)
years and one (1) day, with the accessories of the law, and to pay costs. The
firearms and ammunition in question were ordered confiscated in favor of the
Government. He now appeals to this Court on the ground that the trial court
failed to inform him at the arraignment of his right to be assisted by counsel. The
Solicitor General also questions the correctness of the penalty imposed,
expressing the opinion and making the recommendation that the law on
indeterminate sentence should have been applied.
Counsel for the appellant makes citations of authorities to the effect that it is the
duty of the court to inform the defendant in a criminal case of his right to have
counsel, and that should the court fail to do so, its action constitutes a reversible
error. In this, we agree with the said counsel. However, contrary to the claim of
said counsel that the record in this case shows that the court failed to inform the
appellant of his right to have counsel, we believe that the record merely fails to
show that the court complied with this duty. In other words, the record of the
case is silent on this point. Both the minutes of the court session during which
appellant was arraigned as well as the certificate of arraignment signed by the
Clerk of Court merely show that the case was called for arraignment, the
accused appeared without counsel, and that upon being arraigned, he
pleaded guilty to the charge. The transcript of the stenographic notes taken
down by the stenographer further states that the court instructed the Clerk of
Court to read the information which was translated to the accused after which,
the court asked the defendant for his plea. The accused then pleaded guilty.
As we have already stated, the record of the case does not show whether or
not the court informed the appellant of his right to have counsel, but of course
this cannot be interpreted in the sense that the court failed to so inform him of
such right. On the contrary, because of the presumption that the law has been
complied with, it is to be presumed in this case that the court has complied with
its duty and that it has informed the appellant that he may have counsel, even
a counsel de oficio if he wanted to. In the case of People vs. Miranda, 78 Phil.,
418; 44 Off. Gaz., No. 9, p. 3307, involving a similar case of illegal possession of
firearm, namely, a carbine with ammunition, this Court passing upon the same
point now raised, said:
This precise issue was determine in United States vs. Labial, 27 Phil. 87, 88, in the
sense that unless the contrary appears in the records, it will be presumed, that
the defendant was informed by the court of his right to counsel; "if we should
insist on finding every fact fully recorded before a citizen can be punished for an
offense against the laws, we should destroy public justice, and give unbriddled
license to crime. Much must be left to intendment and presumption for it is often
less difficult to do things correctly than to describe them correctly,"
[People vs. Labial]. The same doctrine was reiterated in People vs. Abuyen, 52
Phil., 722 and in United States vs. Custan, 28 Phil., 19. We see no reason to modify
it now. . .
See also the case of People vs. Javier, 64 Phil., 413, wherein it was stated that this
Tribunal has repeatedly held that failure to state in the record that an accused
has been informed of his right to have counsel, does not warrant reversal of the
judgment if it does not affirmatively appear that he has not been informed
thereof.
Moreover, it has been held in the case of U. S. vs. Escalante, 36 Phil., 746, that
when the appellant fails to raise the question of his right to have an attorney in
the trial court, that question will not be considered when raised for the first time
in the Supreme Court. In the present case, it does not appear that this point was
ever raised in the court below.
As to the application of the law on indeterminate sentence, the Solicitor
General merely says that the trial court failed to apply said law, and he
recommends that it be applied, without giving his reasons for said
recommendation. We agree with the Solicitor General that the letter of the law
on indetermine sentence (Act No. 4103) as amended by Act No. 4225,
particularly the latter part of section 1 thereof, supports his contention, the
offense in the present case being penalized by special law. Said legal provision
states that:
. . . and if the offense is punished by any other law (not the Revised Penal
Code or its amendments), the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by fixed by said law and the minimum shall not be less than the
minimum term prescribed by the same.
Section 2692 of the Revised Administrative Code as amended
by Commonwealth Act 56and Republic Act No. 4 penalizes the criminal act of
the appellant with imprisonment of not less than five (5) years nor more than ten
(10)years. So, if we applied the law on indeterminate sentence, the penalty as
recommended by the Solicitor General would be not less than five (5) years and
not more than a period exceeding ten (10) years. That penalty could hardly be
regarded as favorable to the accused, considering his plea of guilty. We should
not lose sight of the fact that the law on indeterminate sentence as a rule is
intended to favor the defendant ina criminal case particularly to shorten his
term of imprisonment, depending upon his behavior and his physical, mental,
and moral record as a prisoner, to be determined by the Board of
Indeterminate Sentence. Upon favorable recommendation by that Board, the
prisoner may be released on parole upon the expiration of his minimum
sentence. In fact the Governor General in his message published in 31 Off. Gaz.,
No. 92, August 3, 1933, issued in connection with the promulgation of the present
law on indeterminate sentence, said that one of the purposes of the law was to
prevent unnecessary and excessive deprivation of personal liberty and
economic usefulness.
Under the special law on illegal possession of firearms applicable to this case,
already referred to, if we had no law on indeterminate sentence in this
jurisdiction, considering the plea of guilty entered by the appellant, the trial
court could well and lawfully have given him a prison sentence of five (5) years.
If we are now to apply the law on indeterminate sentence in the instant case,
the prison term would to be more than five (5) years for the reason that the
minimum could not be less than five (5) years and the maximum necessarily
would have to be more than five (5) years but not more than ten (10) years. That
would certainly be not in accordance with the purpose of the law on
indeterminate sentence; in fact it would run counter to its spirit.
Moreover, there are authorities to the effect that where the statute under which
an accused was convicted fixes the maximum and minimum punishment, or
either of them, it has been held that it is not necessary, under the indeterminate
sentence law, for the court to specify in the sentence such maximum and
minimum punishment. . . . (24 C. J. S. p. 109, Sec. 1582). Besides, it has also been
held that the law on indeterminate sentence being penal in character must
receive a strict construction in favor of the one to whom the penalty is exacted.
(24 C. J. S. p. 1219, Sec. 1993).
We are, therefore, of the opinion and hold that in cases where the application
of the law on indeterminate sentence would be unfavorable to the accused,
resulting in the lengthening of his prison sentence, said law on indeterminate
sentence should not be applied. Under this opinion, it is obvious that the trial
court did not err in sentencing the appellant to imprisonment for five (5) years
and one (1) day.
In view of the foregoing, the decision appealed from is hereby affirmed, with
costs. So ordered.
G.R. No. L-27481 July 29, 1977
PEOPLE OF THE PHILIPPINE plaintiff-appellee, vs. ALFONSO OATE alias
Bukay,Defendant-Appellant.
BARREDO, J:
Appeal from a judgment of conviction of appellant for murder and imposing
upon him the penalty of "cadena perpetua" (should be reclusion perpetua) of
the Court of First Instance of Negros Occidental in Criminal Case No. 9040,
entitled People of the Philippines vs. Alfonso Oate alias Bukay the dispositive
portion of which reads thus:
WHEREFORE, in view of the foregoing, the Court finds that the prosecution has
established the crime of murder conclusively and beyond reasonable doubt, it
appearing that the killing was attended by the qualifying circumstance of
Hence, the accused is hereby declared guilty of murder, under Art. 248 of the
Revised Penal Code, and, in the absence of any mitigating or aggravating
circumstance, the penalty shall be imposed in its medium period, and he is
hereby sentenced to cadena perpetua, and to indemnify the heirs of the
deceased the sum of P6,000.00 without subsidiary imprisonment in case of
insolvency, and to pay the costs. (Pp. 11- 12, Record.)
Even before the trial in the court below, appellant already admitted having
killed the offended party, Peping Ventosa, by proposing to plead guilty to the
crime of homicide, but this offer was rejected by the trial judge. And so, in this
appeal, he has assigned only two errors, namely:
I. The lower court erred in not appreciating the voluntary surrender of the
accused as a mitigating circumstance.chanrobles virtual law library
II. The lower court erred in holding that the stabbing of the deceased was
attended by the qualifying circumstance of to qualify the stabbing as murder.
(Page 39, Rec.)
There is indeed a certification found in page 18 of the record of the
proceedings in the trial court which appears to be signed by Lt. Col. Domingo
C. Tutaan, Inf. (PC) Provincial Commander, to the following effect:
27 October 1966
C E R T I F I C A T I O N
THIS TO CERTIFY that ALFONSO OATE a detained prisoner has voluntarily
surrendered to this Hq. at about 180800 Oct. 1966. Presently he is detained with
our PC stockade, Provl. Hqs. Neg. Occ. PC, Bacolod City. However subject will
be turned over to Provl. Jail today for safekeeping.chanrobles virtual law library
This certification is issued in connection with the request of Pat. Roberto
Fernandez of Bacolod Police Dept., Bacolod City for whatever purpose deemed
necessary. (Page 18, Record of lower court.)
The obvious reason why no mention of this certification was made in the
decision of the trial court is because it does not appear that the same was
formally offered as evidence by the defense. We can overlook such oversight
as, anyway, the Solicitor General does not impugn the genuineness and
truthfulness of the certificate and, in fact, recommends that on the basis thereof,
appellant be credited with the mitigating circumstance of voluntary
surrender.chanrobles virtual law library
Anent the second assignment of error, it is to be observed that the trial judge,
Hon. Jose F. Fernandez, deferred consideration of the offer of appellant to
plead guilty to the lighter offense of homicide until after he heard the evidence
of the prosecution, hence it must be presumed that His Honor carefully weighed
all relevant circumstances including the demeanor of the witnesses who testified
before him regarding the sole basic factual issue he had to decide, namely,
whether or not the admitted killing of Peping Ventosa by appellant was
attended by "alevosia" or treachery. After the trial, His Honor concluded as
follows:
The accused admits having stabbed Jose Ventosa in the evening of October
15, 1966, and, announced during the trial that he was ready to plead guilty to
homicide, not murder. He stand that in the evening of October 15, 1966, he had
his companions, together with Jose Ventosa, drunk 'tuba' in a 'sari-sari' store in
Burgos Street, Bacolod City, but Jose Ventosa left without paying for his drink so
he (Oate) was asked to pay for it by the storekeeper but instead he promised
to collect the amount from Jose Ventosa: that while he and his two companions
were standing near the corner of Lacson-Burgos Street, Bacolod City, shortly
after leaving the store, he saw Jose Ventosa walking towards the direction of
the Provincial Hospitals in front of Funeraria Alisbo in Lacson Street, so he asked
his companions to approach Jose Ventosa for the payment of the "tuba" but his
companions refused whereupon he himself accosted Jose Ventosa and
demanded payment but Ventosa laid hands upon him, grabbing him by his
collar and pushing him back and forth until he fell to the ground, after which
Jose Ventosa dipped his hand into his pocket as if to fish for something in his
pocket, so, fearing for his life, he drew his knife and stabbed Jose
Ventosa.chanrobles virtual law library
This pretension of the accused was roundly denied by the eyewitnesses
Rebecca Sy and Jimmy Tajanlangit. Rebecca Sy stated that she was seated in
front of a store next to Funeraria Alisbo for she was selling 'tuba' in the evening in
question when Jose Ventosa came and asked for a glass 'tuba' but she
answered that all her 'tuba' had been consumed whereupon Ventosa turned
around and walked towards the direction of the Provincial Hospital; that
Ventosa had not gone far when she saw the accused who, without saying a
word, placed his hand on the shoulder of Ventosa and stabbed him with a knife
hitting him in his side in his forehead.chanrobles virtual law library
Jimmy Tajanlangit, one of the two companions of the accused in the evening in
question, denied that the deceased provoked a quarrel with the accused. He
stated that when they saw Jose Ventosa the accused asked him and his
companion to approach Jose Ventosa for his unpaid drink but he was afraid
and refused, whereupon the accused himself accosted Jose Ventosa and,
once close to him, suddenly stabbed the deceased in his right side and
forehead.chanrobles virtual law library
The record shows that the testimony of Rebecca Sy and Jimmy Tajanlangit have
not been impugned not in any manner disproven by the accused. Their
testimonies are free from any material contradiction and the accused has not
shown any motive whatsoever that these eyewitnesses were impelled by any
malicious or false motive in testifying in the manner they did.
As appellant met the deceased walking along the street appellant suddenly
and without any warning pulled out a bolo under his shirt and with full strength
trust it upon the body of Fernandez. Fernandez fled and appellant continued to
chase him and struck him again until he finally fell. Held: There is no doubt that
the sudden attack made upon Fernandez without any warning was
accompanied by treachery thereby qualifying the killing as murder. People vs.
Dosal, G.R. Nos. L-4215-16." (Pp. 9-11, Record.)
We have read the complete transcript of the proceedings in the trial court and
carefully scrutinized the testimonies of appellant and his lone witness Rogelio
Tobola, in the light of the opposite versions of the eyewitnesses of the
prosecution Tajanlangit and Sy. While it does seem, as contended by counsel for
appellant in his brief and in his memorandum in the court below, rather strange
and unnatural that appellant would unceremoniously and suddenly assault
Ventosa only because the latter left the store without paying for the "tuba" he
had drunk, thus causing the storekeeper to try to collect the P0.20 payment
therefor from the appellant and his companions, Tajanlangit and Edmundo
Cailo, such apparently unusual circumstance finds sufficient explanation in the
fact that, as was shown by the prosecution thru the testimonies of three
witnesses, namely, Porfirio Arcobillas, a policeman, George Valencia and
Fernando Valencia, appellant is a man prone to resorting to the use of his
bladed weapon, notwithstanding protestations made by him on the witness
stand to the contrary. In other words, there is enough basis in the record for Us to
rely on the conclusions of fact of the trial court as regards the decisive issue of
credibility raised by appellant in his second assignment of error. It is almost trite
to reiterate that "time and again, We have held that when the issue is one of
credibility of witnesses, appellate courts will generally not disturb the findings of
the trial court, considering that it is in a better position to decide the question,
having heard the witness and observed their deportment and manner of
testifying during trial, unless it has plainly overlooked certain facts of substance
and value that, if considered, might affect the results of the case."
1

Appellant capitalizes on some alleged discrepancies in details between the
testimonies of the physician and of Tajanlangit as well as between that of the
latter and of the other eyewitness Rebecca Sy. But apart from the fact that the
judge was diligent enough to iron out some of the apparent discrepancies
referred to, the rest of them are related to merely insubstantial matters, which,
as We have uniformly held, lend weight rather than detract from the credibility
of the evidence.
2

There can be no doubt, therefore, as to the guilt of appellant of the crime of
murder charged, qualified by "alevosia." However, he must be credited with
mitigating circumstance of voluntary surrender, for which reason, the Solicitor
General recommends that in lieu of the life imprisonment imposed by the trial
court, the appellant be sentenced to an indeterminate penalty of imprisonment
ranging from twelve years and one day ofreclusion temporal, as minimum, to
eighteen years, two months and one day of reclusion temporal, as maximum. In
this connection, in People vs. Pantoja, 25 SCRA 468, it was held that "(t)he
penalty for murder is reclusion temporal in its maximum period to death. (Art.
248, Revised Penal Code.) There being one mitigating circumstance, voluntary
surrender, the penalty-should be reclusion temporal in its maximum period in
relation to the Indeterminate Sentence Law", and the sentence actually
imposed by the Court was the indeterminate penalty of from 16 years to 20
years of reclusion temporal.
We believe, however, that considering the age of the appellant, as well as other
relevant factors in this case, it would be more in keeping with the spirit and
intent of the Indeterminate Sentence Law, which is "to uplift and redeem
valuable human material and prevent unnecessary and excessive deprivation
of personal liberty and economic usefulness." (Peo. vs. Ducosin, 59 Phil. 109, 117),
to be guided instead by Our holding inPeople vs. Mansala, Jr. et al., 31 SCRA
401, as follows:
... the penalty imposable upon him is the minimum period of the penalty for
murder (see par. 3, Art. 63, Revised Penal Code), which is reclusion
temporalmaximum (17 years, 4 months and 1 day to 20 years). Since the
resulting penalty is neither death nor life imprisonment, the Indeterminate
Sentence Law applies (Sec. 2, Act No. 4103 as amended). Avelino Manansala is
therefore entitled to an indeterminate sentence, the upper range of which
is reclusion temporal maximum and the lower range - which is one degree lower
than the penalty prescribed by the Revised Penal Code for murder is anywhere
within mayor maximum (10 years and 1 day) to reclusion temporal medium (17
years and 4 months). The penalty meted out by the trial court on Avelino
Manansala, Jr. - "from 10 years and 1 day of prison mayor to 17 years, 4 months
and 1 day of reclusion temporal" - is within the range allowed by law and is
therefore correctly imposed."
Besides, the gap between the minimum of fifteen (15) years and the maximum
of twenty (20) years is too short. The law is intended to favor the defendant,
particularly to shorten his term of imprisonment, depending upon his behavior
and his physical, mental and moral record as a prisoner, to be determined by
the Board of Indeterminate Sentence. The law grants the courts discretion to fix
the minimum of the penalty to be imposed, with the limitation that it must be
within the range of the penalty next lower in degree to that prescribed by the
Revised Penal Code for the offense committed.chanrobles virtual law library
Thus, this Court, in People v. Gonzales,
3
stated:
According to section 1 of Act No. 4225, the minimum of the indeterminate
penalty "shall be within the range of the penalty next lower to that prescribed by
the Code for the offense" and the penalty for each offense is provided by the
Code without regard to circumstances modifying criminal liability. In other
words, for purposes of the Indeterminate Sentence Law, the penalty next lower
should be determined without regard as to whether the basic penalty provided
by the Code should be applied in its maximum or minimum period as
circumstances modifying liability may require. When, however, and this may be
the only exception to the rule - the number of mitigating circumstances is such
as to entitle the accused to the penalty next lower in degree, this penalty, in the
application of the Indeterminate Sentence Law, should be taken as the starting
point for the determination of the penalty next lower.
The determination, however, of the minimum is not a mechanical act of
computation, but a consideration of various factors, keeping in mind the basic
purpose of the law. As explained in People v. Docusin:
4

The determination of the "minimum" penalty presents two aspects: first, the more
or less mechanical determination of the extreme limits of the minimum
imprisonment period; and second, the broad question of the factors and
circumstances that should guide the discretion of the court in fixing the
minimum penalty within the ascertained limits.
xxx xxx xxx
We come now to the second aspect of the determination of the minimum
penalty, namely, the considerations which should guide the court in fixing the
term or duration of the minimum period of imprisonment. Keeping in mind the
basic purpose of the Indeterminate Sentence Law "to uplift and redeem
valuable human material, and prevent unnecessary and excessive deprivation
of personal liberty and economic usefulness' (Message of the Governor-General,
Official Gazette No. 92, Vol. XXXI, August 3, 1933), it is necessary to consider the
criminal, first, as an individual and, second, as a member of society. This opens
up an almost limitless field of investigation and which it is the duty of the court to
explore in each case as far as is humanly possible, with the end in view that
penalties shall no be standardized but fitted " far as is possible to the individual,
with due regard to the imperative necessity of protecting the social
order.chanrobles virtual law library
Considering the criminal as an individual, some of the factors that should be are:
(1) His age, especially with reference to extreme youth or old age; (2) his
general health and physical condition; (3) his mentality, heredity and personal
habits; (4) his previous conduct, environment and mode of life (and criminal
record if any); (5) his previous education, both intellectual and moral; (6) his
proclivities and for usefulness or injury to society (7) his demeanor during trial and
his attitude with regard to the crime committed; (8) the manner and
circumstances in which the crime was committed; (9) the gravity of the offense
(note that section 2 of Act No. 4103 excepts grave crimes - this should be kept in
mind in mind in assessing the minimum penalties for analogous
crimes).chanrobles virtual law library
In considering the criminal as a member of society his relationship, first, d his
dependents, family and associates and their relationship with him, and second,
his relationship towards society at large and the State are important factors. The
State is concerned not only in the imperative necessity of protecting the social
organization against the criminal acts of destructive individuals but also in
redeeming the individual for economic usefulness and other social ends. In a
word, the Indeterminate Sentence Law aims to individualize the administration
of our criminal law to a degree not heretofore known in these islands. With the
foregoing principles in mind as guides, the courts can give full effect to the
beneficent intention of the Legislature.
It was for the of giving substance to the purpose of the law that this Court, in
previous cases of murder where there was one mitigating circumstance and no
aggravating circumstances, had usually imposed upon the accused an
indeterminate penalty ranging from ten (10) years and one (1) day of prison
mayor an minimum of the penalty, to either seventeen (17) years or eighteen
(18) years of reclusion temporal as the maximum of the penalty.
5
The minimum
of ten (10) years and one (1) day of prision mayor was set obviously to give
sufficient incentive for the culprit to rehabilitate himself morally and socially to
"redeem the individual for economic usefulness and other social ends."
Likewise, pursuant to Pantoja, the indemnity of P6,000 awarded by the trial court
should be increased to P12,000.chanrobles virtual law library
WHEREFORE, the judgment of conviction appealed from is affirmed, but the
penalty imposed is modified, and appellant Alfonso Oate is sentenced to suffer
an indeterminate penalty of ten (10) years and one (1) day of prision mayor to
seventeen (17) years, four (4) months and two (2) days of reclusion temporal, to
indemnify the heirs of Jose Y. Ventosa in the amount of P12,000, and to pay the
costs.
















SPOUSES JOSE and TRINIDAD BACAR, complainants, vs. JUDGE SALVADOR P. DE
GUZMAN, JR., respondent.
D E C I S I O N
PADILLA, J.:
In this petition by way of complaint, dated 11 April 1994, petitioner-spouses
Jose and Trinidad Bacar pray for the dismissal from the service of respondent
Judge Salvador P. de Guzman, Jr., presiding judge of the Regional Trial Court of
Makati, Branch 142, on the grounds of: 1) gross ignorance of the law, and; 2)
rendering an unjust judgment in Criminal Cases Nos. 89-1360 and 89-2878 for
homicide and attempted homicide respectively, both entitled "People of the
Philippines v. Gerardo Fortaleza Marcial".
The antecedent facts are as follows:
On 30 March 1989, an information for homicide (for the death of one Maximo
Bacar, son of herein petitioner-spouses) was filed by 2nd Assistant Fiscal
Domingo A. Israel against Gerardo Fortaleza Marcial before the Regional Trial
Court of Makati, Branch 142, docketed as Criminal Case No. 89-1360.
On 7 June 1989, another information (this time for attempted homicide
committed against one Edgar Mabuyo) was filed by the aforesaid Fiscal Israel
against the same Gerardo Fortaleza Marcial before the same court, docketed
as Criminal Case No. 89-2878.
On 13 May 1992, after trial on the merits, a Joint Judgment in Criminal Cases
Nos. 89-1360 and 89-2878 was rendered by respondent judge, finding the
accused Gerardo Marcial guilty beyond reasonable doubt of the crimes
charged. The dispositive part of the decision reads:
"WHEREFORE, in view of the foregoing, the Court finds the accused Gerardo
Marcial guilty beyond reasonable doubt of the crime of Homicide in Criminal
Case No. 89-1360 and of the offense of Slight Physical Injuries in Criminal Case
No. 89-2878. No modifying circumstances having attended the commission of
said crimes, the accused is hereby sentenced to an indeterminate penalty of
from eight (8) years and one (1) day of prision mayor to fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal with respect to Criminal
Case No. 89-1360 and to suffer imprisonment of thirty (30) days of arresto
menor as regards Criminal Case No. 89-2878.
The accused is further ordered to indemnify the heirs of the victim Maximo Bacar
in the amount of P50,000.00 as moral damages and to pay the amount
of P33,572.00 as actual damages and costs of suit.
SO ORDERED.
Makati, Metro Manila, May 13, 1992."
On 13 August 1992, the accused, Gerardo Marcial, filed a motion for
reconsideration of the joint judgment, alleging among others, that the court
erred in imposing the penalties without considering at least two (2) mitigating
circumstances, namely: sufficient provocation or threat on the part of the
offended party which immediately preceded the act, and; that the accused
had no intention to commit so grave a wrong as that committed.
On 28 October 1992, herein petitioners filed an opposition to said motion.
However, on 13 November 1992, the lower court granted the motion for
reconsideration filed by the accused. After reassessing the facts of the case on
the basis of said motion, respondent judge took into account the mitigating
circumstances of want of intent to commit so grave a wrong and sufficient
provocation which immediately preceded the act and accordingly, reduced
the penalty in Criminal Case No. 89-1360 to six (6) years of prision mayor, while
retaining the penalty in Criminal Case No. 89-2878, i.e., imprisonment of thirty
(30) days of arresto menor.
The lower court justified its order thus:
"It appearing upon a re-examination of the evidence on record that the
encounter between the group of the accused Gerardo Marcial and that of the
victims Maximo Bacar and Edgar Mabuyo precipitated a 'free for all fight', that
in such a melee, confusion broke loose and was expected to ensue as a matter
of course; that the participation in the melee of each of the members of the
respective groups of the victims and the accused was unexpected and
unpremeditated; that the victim Edgar Mabuyo admitted that prior to the
incident, there was heckling which came from him directed to the group of the
accused Gerardo Marcial and that it was he who started it out, that accused
Gerardo Marcial confined himself to giving a single thrust with an icepick on the
right arm of Edgar Mabuyo and at the back of Maximo Bacar from which it can
be safely inferred that the accused had no intention to commit so grave a
wrong, for otherwise, he would have persisted in attacking the victims to the
point of finishing them off; the Court resolves to accord the accused Gerardo
Marcial the benefit of the mitigating circumstances of want of intent to commit
so grave a wrong and sufficient provocation which immediately preceded the
act in accordance with Article 13, paragraphs 3 and 4 of the Revised Penal
Code and hereby reconsiders the Decision dated May 13, 1992 in the foregoing
respect."
[1]

On 14 December 1992 and 16 April 1993, respectively, the prosecution filed
a motion for reconsideration and an addendum to said motion. On 25 May
1993, the accused filed his comment and/or opposition to the prosecution' s
motion for reconsideration. On 9 December 1993, respondent judge issued an
order denying the prosecution' s motion for reconsideration for lack of merit. On
4 January 1994, the prosecution filed another motion for reconsideration and
clarification which respondent judge denied anew on 21 January 1994.
On 11 April 1994, the spouses Jose and Trinidad Bacar, parents of the
deceased victim Maximo Bacar in Criminal Case No. 89-1360, filed the
present petition praying for the dismissal of respondent judge Salvador P. de
Guzman, Jr., presiding judge of the RTC of Makati, Branch 142, for gross
ignorance of the law and for rendering an unjust judgment in said consolidated
cases.
On the first issue, petitioners allege that respondent judge committed gross
ignorance of the law when he accorded the accused the mitigating
circumstances of want of intent to commit so grave a wrong and sufficient
provocation which immediately preceded the act in accordance with Art. 13,
pars. 3 and 4 of the Revised Penal Code because these cited provisions are not
applicable in either or both criminal cases. They contend that lack of intent to
commit so grave a wrong cannot apply in Criminal Case No. 89-2878 where the
accused was found guilty of slight physical injuries because lack of intention to
kill is not mitigating in crimes against persons, citing the case of People v.
Dalacgac
[2]
where it was held that in crimes against persons who do not die as
a result of the assault, the absence of the intent to kill reduces the felony to
mere physical injuries, but it does not constitute a mitigating circumstance under
Art. 13, par. 3.
[3]

Additionally, said mitigating circumstances cannot apply to Criminal Case
No. 89-1360 (for Homicide) for when the accused stabbed the unarmed and
defenseless Maximo Bacar at his back with an icepick, it is crystal clear, so
petitioners contend, that the intention of the accused Gerardo Marcial at that
particular moment when he executed or committed the stabbing was to kill and
finish off Maximo Bacar and not to harm him only.
[4]
Petitioners cite the case of
People v. Boyles, et al.,
[5]
to wit:
"Article 13, par. 3 of the Revised Penal Code addresses itself to the intention of
the offender at the particular moment when he executes or commits the
criminal act; not to his intention during the planning stage. Therefore, when, as in
the case under review, the original plan was only to rob, but which plan, on
account of the resistance offered by the victim, was compounded into the
more serious crime of robbery with homicide, the plea of lack of intention to
commit so grave a wrong cannot be rightly granted. The unforgettable fact
remains that when they ganged up on their victim, they employed deadly
weapons and inflicted on him, mortal wounds in his neck. At that precise
moment, they did intend to kill their victim, and that was the moment to which
Art. 13, par. 3 refers."
[6]

As for the mitigating circumstance of sufficient provocation, petitioners
contend that this is not applicable to Criminal Case No. 89-1360 (for Homicide)
for while Edgardo Mabuyo, the victim in Criminal Case No. 89-2878, admitted
that prior to the incident, there was heckling which came from him directed at
the group of the accused Gerardo Marcial and that he was the one who
started the heckling, and that the heckling triggered the "free for all fight", there
was however, no iota of evidence that the deceased Maximo Bacar made any
provocation. It is further argued by petitioners that under said Article 13, par. 4,
RPC, the provocation to be considered mitigating must originate from the
offended party. Therefore, said mitigating circumstance cannot be appreciated
in the case involving the deceased Maximo Bacar as it is undisputed that he
himself never gave or caused any provocation.
Petitioners contend that instead of according the accused Gerardo Marcial
the aforesaid mitigating circumstances, respondent judge should have
considered the aggravating circumstances of abuse of superior strength under
Art. 14, par. 15, of the Revised Penal Code and treachery under Art. 14, par. 16,
of the same Code.
[7]

On rendering an unjust judgment, petitioners allege that in imposing a
straight penalty of six (6) years imprisonment for homicide, after taking into
consideration the aforesaid mitigating circumstances, respondent judge has
rendered an unjust judgment in Criminal Case No. 89-1360. It is contended that
under the graduation and application of penalties, the penalty that should be
imposed can in no case be justified to only six (6) years "flat".
[8]

The present complaint was referred to respondent judge for comment by
then Deputy Court Administrator Juanito A. Bernad in his First (1st) Indorsement
dated 27 May 1994. In reply thereto, respondent judge filed a motion, dated 3
June 1994, requesting for an extension of twenty (20) days within which to file his
comment for the reason that he needed to borrow the records of said Criminal
Cases Nos. 89-1360 and 89-2878 from the Makati Regional Trial Court so that he
may be able to file an intelligible comment. He also explained that per his
recollection, when accused Marcial filed his motion for reconsideration of the
joint judgment, respondent judge, to be sure that he would not commit an error,
sought a second opinion from one Judge Nemesio Felix who allegedly opined
that the said accused should have been given the benefit of homicide in a
"tumultuous affray" with no intent to commit the crime, and of self-defense, and
suggested a reducted straight penalty of anywhere from two (2) years to six (6)
years. Respondent's request for extension was granted by then Deputy Court
Administrator Juanito A. Bernad per his letter dated 20 June 1994.
However, as his comment was not forthcoming, tracer letters, dated 8
November 1994 and 10 October 1995, were sent to respondent judge by the
Office of the Court Administrator (OCA, for brevity), reiterating the directive for
him to file his comment on the complaint against him.
Meanwhile, complainants filed a letter with the OCA dated 20 October 1995
reiterating the charges against respondent judge and particularly assailing his
order of 13 November 1992 imposing a straight penalty of six (6) years so as to
enable the accused to avail of the benefits of probation and prayed that
judgment be imposed by this Court on the accused to vindicate the death of
their son. They also took exception to the statement of respondent judge in the
assailed order that their motion for reconsideration dated 10 December 1992
was filed out of time.
[9]

Since respondent judge continually failed to file his comment, this Court
issued a Resolution, dated 1 July 1996, requiring respondent judge to 1) show
cause why he should not be disciplinarily dealt with or held in contempt for
failure to comment on the complaint, and; 2) file the required comment on the
complaint. In the same Resolution, the complainants were advised that their
prayer to impose the correct penalty in the criminal charges cannot be granted
since the present proceedings involve only the administrative liability, if any, of
respondent judge.
On 6 August 1996, respondent judge finally filed his comment. He explained
therein why he took into consideration the aforesaid mitigating circumstances
and contends that in doing so, he merely exercised his discretion and judgment.
As to why he should not be disciplinary dealt with or held in contempt for failure
to file comment, respondent judge set forth the following reasons:
"1. In the belief that the complaint for ignorance of the law (for appreciating
the two (2) mitigating circumstances) was unquestionably, obviously and
completely baseless because they were acts of judicial discretion in the
appreciation of evidence, respondent did not give the matter the priority that it
deserved.
2. The Bacar spouses assured respondent during a visit to him in the Pasay
City RTC that they were going to withdraw their complaint.
3. Respondent had been under severe stress since the first week of
November 1995 to the present when he discovered that Judge Salvador Abad
Santos, executive judge of the Regional Trial Court of Makati, x x x initiated an
administrative complaint against him x x x"
[10]

On 14 August 1996, respondent judge filed an urgent ex-parte motion for
second (2nd) extension of time to file his explanation, and; on 28 August 1996,
respondent finally filed his explanation on why he should not be disciplinarily
dealt with or held in contempt of court for his failure to file a comment.
After evaluating the foregoing facts, the Office of the Court Administrator
made the following findings:
1. Respondent cannot be held liable for rendering an unjust judgment
by considering in favor of the accused the two (2) mitigating circumstances.
Under the Rules of Court, a judgment of conviction may, upon motion of the
accused, be modified or set aside by the court rendering it before the
judgment has become final or appeal has been perfected. Moreover,
errors in the application of the law and the appreciation of the evidence
are judicial in nature. The remedy therefore of the complainants should
likewise be judicial.
2. However, respondent may be held liable for gross ignorance of the
law for imposing a straight penalty of six (6) years of imprisonment on the
accused in his modified judgment in the case for homicide. The application
of the Indeterminate Sentence Law is mandatory where imprisonment would
exceed one (1) year.
[11]
And in applying the Indeterminate Sentence Law for
offenses penalized under the Revised Penal Code, the indeterminate
sentence should have a fixed minimum and maximum.
[12]
In this case, what
was imposed was a straight penalty which is erroneous.
[13]

We agree with aforesaid findings of the Office of the Court Administrator on
both points.
Not every error or mistake of a judge in the performance of his duties makes
him liable therefor. To hold a judge administratively accountable for every
erroneous ruling or decision he renders, assuming that he has erred, would be
nothing short of harassment and would make his position unbearable. For no
one called upon to try the facts or interpret the law in the process of
administering justice can be infallible in his judgment.
[14]

In the case at bar, respondent judge cannot be faulted for modifying his
decision after considering the two (2) mitigating circumstances of want of intent
to commit so grave a wrong and sufficient provocation which immediately
preceded the act, set forth in the motion for reconsideration filed by the
accused. Under the law, a judgment of conviction may, upon motion of the
accused, be modified or set aside by the court rendering it before the judgment
has become final or appeal has been perfected.
The fact that respondent judge' s appreciation of the evidence differed
from that of petitioners which could be biased, does not warrant the conclusion
that said judge has rendered an unjust judgment nor that he is ignorant of the
law. In the absence of any indication 1) that the trial court's conclusion is based
entirely on speculations; 2) that there is grave abuse of discretion; 3) that the
court, in making its findings went beyond the issues of the case and the same
are contrary to the admissions of both appellant and appellee, or; that the
judgment is based on a misapprehension of facts, or; that the presiding judge is
blatantly biased, the general rule that the trial court' s findings of fact should be
given great weight still stands.
However, respondent judge is liable for gross ignorance of the law for
imposing a straight penalty of six (6) years imprisonment on the accused in his
modified judgment in the case for homicide. It is basic law that, as stated
above, the application of the Indeterminate Sentence Law is mandatory where
imprisonment exceeds one (1) year,
[15]
except only in the following cases:
"a. Offenses punished by death or life imprisonment.
b. Those convicted of treason (Art. 114), conspiracy or proposal to commit
treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134),
sedition (Art. 139), or espionage (Art. 117).
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5).
Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla,
L-28547, Feb. 22, 1974). Offender is not disqualified to avail of the benefits
of the law even if the crime is committed while he is on parole. (People v.
Clareon, CA 78 O.G. 6701, Nov. 19, 1982).
f. Those who escaped from confinement or those who evaded sentence.
g. Those granted conditional pardon and who violated the terms of the
same (Art. 159). (People v. Corral, 74 Phil. 359).
h. Those whose maximum period of imprisonment does not exceed one
year.
Where the penalty actually imposed does not exceed one year, the
accused cannot avail himself of the benefits of the law, the application of
which is based upon the penalty actually imposed in accordance with
law and not upon that which may be imposed in the discretion of the
Court. (People v. Hidalgo, [CA] G.R. No. 00452-CR, Jan. 22, 1962).
i. Those who are already serving final judgment upon the approval of the
Indeterminate Sentence Law."
[16]

The need for specifying the minimum and maximum periods of the
indeterminate sentence is to prevent the unnecessary and excessive
deprivation of liberty and to enhance the economic usefulness of the accused,
since he may be exempted from serving the entire sentence, depending upon
his behavior and his physical, mental, and moral record. The requirement of
imposing an indeterminate sentence in all criminal offenses whether punishable
by the RPC or by special laws, with definite minimum and maximum terms, as
the Court deems proper within the legal range of the penalty specified by the
law must, therefore, be deemed mandatory.
[17]

In crimes punishable under the Revised Penal Code, the maximum term of
the indeterminate penalty is determined in accordance with the rules and
provisions of the Code exactly as if the Indeterminate Sentence Law had never
been enacted.
[18]

The rules and provisions which must be applied to determine the maximum
term of the indeterminate penalty are those provided in Articles 46, 48, 50 to 57,
61, 62 (except paragraph 5), 64, 65, 68, 69, and 71.
[19]

However, the aforesaid rules and provisions in those articles, particularly Arts.
50 to 57, 62, 64 and 65, are not applicable in fixing the minimum term of the
indeterminate penalty. The Court has unqualified discretion to fix the term of the
minimum.
[20]
The only limitation is that it is within the range of the penalty next
lower to that prescribed by the Code for the offense committed, without regard
to its three (3) periods.
[21]

Take the present case, for example, of homicide in which two (2) mitigating
circumstances attended its commission. The penalty for homicide prescribed by
Article 249 of the Revised Penal Code is reclusion temporal. Since two (2)
mitigating circumstances and no aggravating circumstance attended the
commission of the offense, said penalty shall be lowered by one degree
pursuant to Article 64 paragraph 5 of the same Code, which in this case
is prision mayor. This penalty shall be imposed in its medium period considering
that no other modifying circumstance attended the commission of the offense,
the two (2) mitigating circumstances having been already taken into account in
reducing the penalty by one (1) degree lower (Basan v. People, L-39483, 29
November 1974, 61 SCRA 275). Applying the Indeterminate Sentence Law, the
minimum of the penalty shall be within the range of the penalty next lower in
degree which is prision correccional and the maximum of which shall be within
the range of the medium period of prision mayor.
[22]

Since respondent judge imposed the straight penalty of six (6) years which is
erroneous, he is therefore liable for gross ignorance of the law. This Court has
held that when the law is so elementary, not to know it or to act as if one does
not know it, constitutes gross ignorance of the law.
[23]
Likewise, that unawareness
of and unfamiliarity with the application of the Indeterminate Sentence Law
and duration and graduation of penalties merit disciplinary action, from
reprimand to removal.
[24]

Respondent judge cannot shirk responsibility for imposing said erroneous
penalty by saying, as he did in his motion for extension dated 3 June
1994,
[25]
that he in fact sought and adopted the opinion of one Judge Nemesio
Felix. A judge should have moral and intellectual courage and independence
of mind in the discharge of his duties for only in that way can he merit his judicial
position and the support and confidence of the people in him.
[26]

Respondent judge owes it to the public and to the legal profession to know
the law he is supposed to apply to a given controversy. He is called upon to
exhibit more than just a cursory acquaintance with the statutes and procedural
rules. Party litigants will have great faith in the administration of justice if judges
cannot justly be accused of apparent deficiency in their grasp of the legal
principles.
[27]

Finally, this Court takes notice of the fact that respondent judge filed his
comment on this present petition more than two (2) years from the time the
Office of the Court Administrator through then Deputy Court Administrator
Juanito Bernad, issued a directive for him to do so. As a judge, respondent
ought to know that all directives coming from the Office of the Court
Administrator and his deputies are issued in the exercise of administrative
supervision of courts and their personnel, hence, they should be respected. His
excuses that the complaint was unquestionably, obviously, and completely
baseless; that complainants were going to withdraw their complaint, and; that
he was under severe stress are not enough for him to ignore said Office's
directives. It took a resolution of the Court itself for respondent judge to finally file
his comment. Even then, respondent judge had to ask for several extensions
before complying with this Court's orders.
[28]

WHEREFORE, the Court, resolving to hold respondent Judge Salvador P. de
Guzman, Jr. administratively liable for gross ignorance of the law, imposes on
him a FINE of Five Thousand Pesos (P5,000.00) WITH A STERN WARNING that a
repetition of the same or similar act will be dealt with more severely.
Additionally, he is hereby ADMONISHED for failure to file promptly his comment
as directed by the Office of the Court Administrator.
SO ORDERED.