Handy

THE UNITED STATES, complainant-appellee,

vs.
ALEJO RAVIDAS, ET AL., defendants-appellants.
Palma, Gerona & Mercado for appellants.
Office of the Solicitor-General Araneta for appellee.
MAPA, J.:
The complaint in this case charges the defendants with the crime of insurrection. Out of the twentyfive defendants, five of them, to wit, Alejo Eduria, Francisco Eduria, Bruno Labnutin, Vicente Abales,
and Francisco Nagor, were acquitted in the court below. The other twenty-were found guilty of the
said crime and sentenced to two years less one day of imprisonment, with the exception of Isidoro
Nalagum, who was sentenced to one year's imprisonment, and Alejo Ravidas and Narciso Melliza,
who were sentenced to five and three years' imprisonment, respectively. All of the twenty defendants
appealed. The appeal was granted. Numeriano Aniar, Andres Fectura, Florencio Opog, Vicente
Maambong, Urbano Barros, Isidoro Nalagum, Natalio (alias Julio) Raiz, and Leonardo Nalagum
withdrew from the appeal. In the course of the appeal proceedings Inocencio Pagaling, Macario
Beemen, Fermin Paday, Valentin Leona, Catalino Opog, Ignacio Opog, Romualdo Tactacon, Jose
Macaubos, Victoriano Ello, and Dionisio Jamero escaped from the provincial jail in Cagayan de
Misamis, where they were confined, as appears from a part of the record in the case. The sentence
of the Court of First Instance with regard to the eight first named was made final as to them by
reason of their withdrawal from the appeal. It has also become final as regards the other eight on
account of their escape. Such escape implies withdrawal within the meaning of the principles
governing the prevailing criminal procedure. The appeal is, therefore, only continued in this instance
as regards Alejo Ravidas and Narciso Melliza.
The counsel for the Government in this case prays for the acquittal of both defendants, as "it is not
proven", he says with respect to Alejo Ravidas, " that he permitted or encouraged insurrection or
engaged in the same by abetting them directly or indirectly." The only fact disclosed by the evidence
adduced in the case is that Alejo Ravidas knew that there were insurgents in a place called Manila,
jurisdiction of the town of Agusan, of which he was municipal president, and his duty as such
president required him to report this fact to the senior officer of the province, but he did not do so,
nor did he take any steps toward pursuing or denouncing the insurgents or to protect the people
from their probable depredations. However reproachful the silence of the defendant may be, it does
not in itself constitute the crime of insurrection. Act No. 292 defines and specifies the acts which
shall be punished as insurrection, but among those acts the silence of the defendant is not
enumerated. This silence is not an act; it is, rather, an omission. We quite agree with these
suggestions of the counsel for the Government, since nothing more than the aforesaid facts has
been proven against Alejo Ravidas. These facts are not sufficient to hold him liable for the crime of
insurrection.
The same can be said with reference to Narciso Melliza, as there is no evidence showing that he
had promoted, encouraged or aided any insurrection or that he in any way participated in the same.
From the fact that he sold rice in great or small quantities to persons who afterwards appeared to be
insurgents, and had the rice so sold even been taken to the insurgents' camp, which is the only fact
which can be considered proven with respect to the defendant Melliza, it is not in itself conducive to
criminal liability. It is not shown that he sold the rice to the insurgents knowing that they were such
and with the deliberate purpose of aiding the insurrection.

In view of the foregoing considerations, we reverse the judgment below with regard to Alejo Ravidas
and Narciso Melliza, both of whom we acquit with costs de oficio. The former's release shall be
ordered immediately, as he is the only one confined in prison. Narciso Melliza is out on bail.
We decide further that the appeal entered by Dionisio Jamero, Inocencio Pagaling, Macario
Beemen, Fermin Paday, Valentin Leona, Catalino Opog, Ignacio Opog, Romualdo Tactacon, Jose
Macaubos, and Victoriano Ello be dismissed. The judgment of the court below as regards these
latter-named defendants is affirmed and made final, with the corresponding costs in this instance
upon each on of them. So ordered.

**
THE UNITED STATES, Complainant-Appellant, v. SIMEON FIGUERAS ET AL., DefendantsAppellants.
Pedro Concepcion for Appellants.
Solicitor-General Araneta for Appellee.
SYLLABUS
1. CRIMINAL LAW, CONSPIRACY; EVIDENCE. Proof that the defendants met together and made
complaints showing a discontent with the Government on account of real or fancied evils is not sufficient to
sustain a conviction for the crime of conspiracy to overthrow the Government.

DECISION

MAPA, J. :

The judgment of the Court of First Instance from which the defendants appealed finds them guilty of the
crime of conspiracy under section 1 of Act No. 292, and imposes upon them the penalty of two years
imprisonment and a fine of $2,000, and four years imprisonment and a fine of $5,000, respectively. The
merits of the case did not justify this conviction; therefore the judgment must be reversed.
Of the three witnesses presented on behalf of the prosecution, namely, Paulino Legaspi, Laureano Martinez,
and Petronilo Portugal, we must disregard the testimony of the latter, as it proves absolutely nothing against
the defendants. He testifies that he was invited by Paulino Legaspi to rebel against the Government, and
that he was given to understand by Legaspi that there were many persons who intended to conspire, but the
witness did not know whether the accused were implicated in this conspiracy.
Paulino Legaspi testifies that various persons, some forty more or less in number, were conspiring to
overthrow the constituted Government, and states that he knows that the defendants were engaged in this
conspiracy because he heard them say so in their conversations. Called upon to repeat the words which he
heard them say, he stated the following: "What a life this is, so full of misery, constantly increasing. When
will our wretchedness end? When will the authorities remedy it? What shall we do?" He does not state that
he heard anything beyond this, and it appears that he relies solely upon these words, used by the
defendants, as a basis for his assertion that they were conspiring. This being so, his assertion appears
clearly to be the result of an arbitrary and gratuitous conclusion, because, although these words reveal
discontent on account of the evils, real or fictitious, to which they-refer, they are not alone sufficient to
prove the existence of a conspiracy to rebel, much less with the aid of force, against the constituted
Government. The reason which the witness gives us for his belief is not, therefore, convincing, and
consequently we consider that his evidence must be rejected as to this part of his testimony.
As to other matters this witness testifies solely from hearsay. "They say" (these are his own words) "that
these" (the accused) "are the principal conspirators." "According to my information," he adds further on,
"this agreement has existed" (referring to the agreement to rebel against the Government, which in the

opinion of the witness constitutes the conspiracy), "not only between these two but also between them and
others." Again, when answering a question put to him in general terms, as to whether his testimony was the
result of his own knowledge, he stated that he knew these things only by hearsay and that he was unable to
state from whom he received his information. Other than the testimony referred to, this witness testifies to
no concrete fact relative to the conspiracy herein prosecuted, and does not even know if the accused have
formed any determination evidencing their intention to conspire, nor does he know if they have collected
contributions or attempted to obtain possession of arms for the purposes of the conspiracy.
The testimony of Laureano Martinez would doubtless be more important than that of the preceding
witnesses were it not highly improbable from several points of view. In the first place, it is improbable that
the defendants should select the house of this witness, Martinez, for the purpose of meeting together to
conspire, to read and comment upon correspondence relating to the conspiracy, and to consider the matter
of contributions and arms collected for the purposes thereof, as this witness testifies, doing all this in his
presence, without the slightest caution or care, when it appears from the testimony of the witness himself
that not only was he not a party to the conspiracy but that he had not even been requested to join it. From
this it follows necessarily that the conspirators could not know whether they could count upon his consent
and adhesion or not, and it is incredible that the defendants should discuss so grave and delicate a matter
with such an absolute disregard of the most rudimentary precautions precautions which the most ordinary
prudence would counsel in such cases as would appear to be the case from the testimony of the witness
Martinez. This would be equivalent to supposing that the defendants and their companions were entirely
devoid of the instinct of self-preservation. In the second place, and from another point of view, it is also
improbable that Martinez, who had no interest in the conspiracy, he being, according to his own testimony,
an entire outsider, would have permitted such criminal meetings to be held in his house, thus exposing
himself to disagreeable consequences.
The letter which this witness states he abstracted from the pocket of the defendant Bermudes, and which
has been attached to the record as evidence for the prosecution, might perhaps have some value as
evidence if it were shown: (1) That the words and phrases used in the letter have a conventional meaning;
and if so, then the ordinary meaning of the words and phrases employed; (2) the authenticity of this letter.
Nothing in this connection has been proven, nor was any attempt made to introduce such evidence at the
trial and in the absence of such important data the value of this letter as evidence must depend exclusively
upon the testimony of Laureano Martinez, whose credibility, as we have already stated, appears exceedingly
doubtful. The terms of the letter itself are such that, given their natural and ordinary meaning, they do not
even remotely show the existence of any conspiracy.
Furthermore, it is at least strange that Martinez, although he succeeded in getting possession of the letter
on the night of Monday, March 9, did not deliver it to the governor of the province until the night of
Wednesday, the 11th, if, as he testifies, his sole purpose in stealing it was to discover and denounce the
conspiracy. There is nothing in the case, supposing that such was his purpose, to satisfactorily explain such
a delay, and it is even more strange that it should not have occurred to the witness to read the letter. He
had it in his possession for a considerable length of time, and it would have been natural for him to be
interested in reading it, either for the purpose of assuring himself that it was the same letter he proposed to
purloin and not some other, or else for the purpose of determining, by acquainting himself with its contents,
of which he had no knowledge, whether or not it was sufficient to support the very grave charge which he
proposed to lodge with the Government authorities of the province. Above all, the fact that the other witness
for the prosecution, Paulino Legaspi, who, according to the testimony of Martinez, is the one who delivered
this letter to the defendant Bermudes, not only fails to say a single word about it but testifies in such a way
that it may reasonably be inferred from his testimony as a whole that he was wholly ignorant of the
existence of the letter, his statements thus being an implicit denial of the assertions of Martinez in this
regard.
The representative of the Government in this instance attempts to explain what he terms the vacillation of
the witnesses for the prosecution by the fear which, in his opinion, they naturally would have of
incriminating themselves or of being held to some responsibility. This argument rests upon the assumption
that these witnesses have had direct relations with the defendants with respect to the facts concerning
which they testified, and that it may even be inferred that they were involved in the conspiracy. We can not
admit this assumption, particularly in view of the fact that the witnesses themselves declare that they had
not even been spoken to about taking part in the conspiracy. Apart from this, no matter how much stress
may be laid upon the fear to which the Solicitor-General refers, we can not see how the words of the
witnesses can be interpreted to mean something entirely opposed to their natural and proper meaning. The
law does not require a witness to incriminate himself, but it does impose upon him the obligation of being
truthful in his testimony. Upon no other assumption than that of the witnesss veracity can his testimony be

considered at all.
The prosecution has endeavored to prove that on the night preceding the day on which the information in
this case was filed the witness Martinez was pursued by the defendants, accompanied by some other
persons, in order that they might revenge themselves upon him for having denounced them to the governor
of the province. The merits of the case do not appear to us to conclusively establish this fact; but even if it
were true, it would not necessarily establish the guilt of the defendants. They might feel resentment and a
desire for revenge against the informer, even though they were completely innocent of the offense charged;
it may even be said that the more false and defamatory the charge laid against them, the more natural and
the more profound would be their resentment.
In view of the insufficiency of the evidence for the prosecution it is unnecessary to consider the weight to be
attributed to the testimony of the witnesses for the defense, which, however, tends to demonstrate the
innocence of the defendants. Their guilt not having been established by the evidence, they are entitled to an
acquittal.
We therefore reverse the judgment appealed and acquit the defendants, with the costs of both instances de
oficio.

**
THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellant,
vs.
JOSE MA. VELOSO, defendant-appellant.
Claro M. Recto for appellant.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court of First Instance of Manila finding the accused, Jose
Ma. Veloso, guilty of the crime of resistance of the agents of the authority, in violation of article 252
of the Penal Code, and sentencing him to four months and one day imprisonment, arresto mayor,
with the accessory penalties, to pay a fine of P200, with the corresponding subsidiary imprisonment
in case of insolvency, and to pay the costs. The errors assigned by counsel for the accused as
appellant, go to the proposition that the resistance of the police was justifiable on account of the
illegality of the John Doe search warrant.
In May, 1923, the building located at No. 124 Calle Arzobispo, City of Manila, was used by an
organization known as the Parliamentary Club. Jose Ma. Veloso was at that time a member of the
House of Representative of the Philippine Legislature. He was also the manager of the club.
The police of Manila had reliable information that the so-called Parliamentary Club was nothing more
than a gambling house. Indeed, on May 19, 1923, J. F. Townsend, the chief of the gambling squad,
had been to the club and verified this fact. As a result, on May 25, 1923, Detective Andres Geronimo
of the secret service of the City of Manila, applied for, and obtained a search warrant from Judge
Garduo of the municipal court. Thus provided, the police attempted to raid the Parliamentary Club a
little after three in the afternoon of the date above- mentioned. They found the doors to the premises
closed and barred. Accordingly, one band of police including policeman Rosacker, ascended a
telephone pole, so as to enter a window of the house. Other policemen, headed by Townsend, broke
in the outer door.

Once inside the Parliamentary Club, nearly fifty persons were apprehended by the police. One of
them was the defendant Veloso. Veloso asked Townsend what he wanted, and the latter showed
him the search warrant. Veloso read it and told Townsend that he was Representative Veloso and
not John Doe, and that the police had no right to search the house. Townsend answered that Veloso
was considered as John Doe. As Veloso's pocket was bulging, as if it contained gambling utensils,
Townsend required Veloso to show him the evidence of the game. About five minutes was
consumed in conversation between the policemen and the accused the policemen insisting on
searching Veloso, and Veloso insisting in his refusal to submit to the search.
At last the patience of the officers was exhausted. So policeman Rosacker took hold of Veloso only
to meet with his resistance. Veloso bit Rosacker in the right forearm, and gave him a blow in another
part of the body, which injured the policeman quite severely. Through the combined efforts of
Townsend and Rosacker, Veloso was finally laid down on the floor, and long sheets of paper,
of reglas de monte, cards, cardboards, and chips were taken from his pockets.
All of the persons arrested were searched and then conducted to the patrol wagons. Veloso again
refused to obey and shouted offensive epithets against the police department. It was necessary for
the policemen to conduct him downstairs. At the door, Veloso resisted so tenaciously that three
policemen were needed to place him in the patrol wagon.
1awph!l.net

In the municipal court of the City of Manila, the persons arrest in the raid were accused of gambling.
All of them were eventually acquitted in the Court of First Instance for lack of proof, with the sole
exception of Veloso, who was found guilty of maintaining a gambling house. This case reached the
appellate court where the accused was finally sentenced to pay a fine of P500. (No. 22163. 1 )
The foregoing are the principal facts taken mainly from the findings of the trial judge, the Honorable
Vicente Nepomuceno. Counsel for the appellant makes no effort to impugn these findings, except
that he stresses certain points as more favorable to the case of his client. The defense, as previously
indicated, is planted squarely on the contention that since the name of Veloso did not appear in the
search warrant, but instead the pseudonym John Doe was used, Veloso had a legal right to resist
the police by force. The nature of this defense makes it advisable to set forth further facts, relating
particularly to the search warrant, before passing to the law.
There are found in the record the application for search warrant, the affidavit for search warrant, and
the search warrant. The application reads:
UNITED STATES OF AMERICA
PHILIPPINE ISLANDS
IN THE MUNICIPAL COURT OF THE CITY OF MANILA
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff, vs. JOHN DOE, Defendant.
APPLICATION FOR
SEARCH WARRANT

(G)

Testimony taken before Hon. L. Garduo, Judge, Municipal Court, Manila.

Andres Geronimo, being duly sworn, testifies as follows:

Q. What is your name, residence and occupation? A. Andres Geronimo,

No. 47 Revellin, detective.
Q. Are you the applicant of this search warrant? A. Yes, sir.
Q. Do you know the premises situated at No. 124 Calle Arzobispo, District of
W. C., City of Manila? A. Yes. sir.
Q. Do you know who occupies said premises? A. I do not know. According
to the best of my information the house is occupied by John Doe.
Q . What are your reasons for applying for this search warrant? A. It has
been reported to me by a person whom I consider to be reliable that in said
premises there are instruments and devices used in gambling games, such
as cards, dice, chips, lottery tickets, lists of drawing and lists used in
prohibited games kept. It has been reported to me by a person whom I
consider to be reliable that there are or there will be gambling conducted in
said premises. The aforesaid premises are known as gambling house. I have
watched the foregoing premises and believed it to be a gambling house and
a place where instruments and devices used in gambling games, such as
cards, dice, chips, lottery tickets, lists of drawing and lists used in prohibited
games are kept.
I, Andres Geronimo, being duly sworn, depose and say that I have read the foregoing
questions and answers and that I find the same to correct and true to the best of my
knowledge and belief.
(Sgd.) ANDRES GERONIMO
Subscribed and sworn to before me this 25th day of May, 1923.
(Sgd.)

L. GARDUO

Judge, Municipal Court

The affidavit and the search warrant are so nearly alike that it will suffice to copy the search warrant
alone. This document reads:
UNITED STATES OF AMERICA
PHILIPPINE ISLANDS
IN THE MUNICIPAL COURT OF THE CITY OF MANILA
THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff,
vs.
JOHN DOE, Defendant.
SEARCH WARRANT

(G)

The People of the Philippine Islands, to any member of the

Police Force of the City of Manila.

GREETING:
Proof by affidavit having this day been made before me by Andres Geronimo that he
has good reason to believe and does believe that John Doe has illegally in his
possession in the building occupied by him and which is under his control, namely in
the building numbered 124 Calle Arzobispo, City of Manila, Philippines Islands,
certain devices and effects used in violation of the Gambling Law, to wit: money,
cards, chips, reglas, pintas, tables and chairs and other utensils used in connection
with the game commonly known as monte and that the said John Doe keeps and
conceals said devices and effects with the illegal and criminal intention of using them
in violation of the Gambling Law.
Now therefore, you are hereby commanded that at any time in the day or night within
ten (10) days on or after this date to make a search on the person of said John Doe
and in the house situated at No. 124 Calle Arzobispo, City of Manila, Philippine
Islands, in quest of the above described devices and effects and if you find the same
or any part thereof, you are commanded to bring it forthwith before me as provided
for by law.
Given under my hand, this 25th day of May, 1923.
(Sgd.)
L. GARDUO
Judge, Municipal Court
Coming now to the legal aspects of the case it is first worthy of mention that by reason of the Fourth
Amendment to the United States Constitution and the eleventh and eighteenth paragraphs of the
Philippine Bill of Rights, as found in the present Organic Act, the security of the dwelling and the
person is guaranteed. The organic act provides "that the right to be secured against unreasonable
searches and seizures shall not be violated." It further provides "that no warrant shall issue but upon
probable cause, supported by oath or affirmation and particularly describing the place to be
searched and the person or things to be seized."
In the Philippine Code of Criminal Procedure are found provisions of the same import although
naturally entering more into detail. It is therein provided, among other things, that "a search warrant
shall not issue except for probable cause and upon application supported by oath particularly
describing the place to be searched and the person of thing to be seized." (Section 97.) After the
judge or justice shall have examined on oath the complainant and any witnesses he may produce,
and shall have taken their depositions in writing (section 98), and after the judge or justice is
satisfied of the existence of facts upon which the application is based, or that there is probable
cause to believe that they exist, he must issue the warrant which must be substantially in the
following form:
. . . You are, therefore, commanded, . . . to make immediate search on the person of
............................, or in the house situated ...................................... (describing it or any other
place to be searched with reasonable particularity, as the case may be) for the following
property: . . . ." (Section 99.) It is finally provided that "a person charged with a crime may be
searched for dangerous weapons or anything which may be used as proof of the commission
of the crime. (Section 105).

A search warrant must conform strictly to the requirements of the constitutional and statutory
provisions under which it is issued. Otherwise it has rightly been held, must be absolutely legal, "for
there is not a description of process known to the law, the execution of which is more distressing to
the citizen. Perhaps there is none which excites such intense feeling in consequence of its
humiliating and degrading effect." The warrant will always be construed strictly without, however,
going the full length of requiring technical accuracy. No presumptions of regularity are to be invoked
in aid of the process when an officer undertakes to justify under it. (24 R. C. L., pp. 711, et seq.;
Reed vs. Rice [1829], 2 J. J. Marshall [Ky.] 44; 19 Am. Dec., 122; Smith vs. McDuffee [1914], 72
Ore., 276; Ann. Cas. 1916 D, 947.)
The search warrant has been likened to a warrant of arrest. Although apprehending that there are
material differences between the two, in view of the paucity of authority pertaining to John Doe
search warrants we propose to take into consideration the authorities relied upon by the appellant,
thus following the precedent of Uy Kheytin vs. Villareal ([1920], 42 Phil., 886), where the regularity of
the issuance of the search warrant was also questioned.
In the lower court, and again in this court, the attorneys for the defense quoted from Wharton's
Criminal Procedure. In that text at pages 51, 52, 54, 55, and 56 of volume 1 of the Tenth Edition, is
found the following:
Form and Sufficiency of Warrant. Technical accuracy is not required. . . .
xxx

xxx

xxx

Name and description of the accused should be inserted in the body of the warrant and
where the name is unknown there must be such a description of the person accused as will
enable the officer to identify him when found.
xxx

xxx

xxx

Warrant for apprehension of unnamed party, or containing a wrong name for the party to be
apprehended is void, except in those cases where it contains a descriptio personae such as
will enable the officer to identify the accused.
xxx

xxx

xxx

John Doe' Warrants. It follows, on principle, from what has already been said regarding the
essential requirements of warrants for the apprehension of persons accused, and about
blank warrants, that a warrant for the apprehension of a person whose true name is
unknown, by the name of "John Doe" or "Richard Roe," "whose other or true name in
unknown," is void, without other and further descriptions of the person to be apprehended,
and such warrant will not justify the officer in acting under it. Such a warrant must, in
addition, contain the best descriptio personae possible to be obtained of the person or
persons to be apprehended, and this description must be sufficient to indicate clearly the
proper person or persons upon whom the warrant is to be served; and should state his
personal appearance and peculiarities, give his occupation and place of residence, and any
other circumstances by means of which he can be identified.
Person apprehended in act of committing a crime, under a "John Doe" warrant, on the other
hand, the apprehension will not be illegal, or the officer liable, because under such
circumstances it is not necessary that a warrant should have been issued.

The authority most often cited to sustain the text, and quoted with approval by the United States
Supreme Court, is the case of Commonwealth vs. Crotty ([1865], 10 Allen [Mass.], 403). It there
appeared that one Peaslee had made a complaint to the police court Lee, charging that "John Doe
or Richard Roe, whose other or true name is to your complainant unknown," had committed an
assault and battery upon him; upon which complaint a warrant was issued against "John Doe or
Richard Roe, whose other or true name is to your complainant unknown, named in the foregoing
complaint." Neither the complaint nor the warrant contained any further description or means of
identification of the person to be arrested. Crotty resisted the arrest upon the ground that the warrant
was invalid. Mr. Chief Justice Bigelow, as the organ of the Supreme Court of Massachusetts, said:
We cannot entertain a doubt that the warrant on which the officer attempted to arrest one of
the defendant at the time of the alleged riot was insufficient, illegal and void. It did not contain
the name of the defendant, nor any description or designation by which he could be known
and identified as the person against whom it was issued. It was in effect a general warrant,
upon which any other individual might as well have been arrested, as being included in the
description, as the defendant himself. Such a warrant was contrary to elementary principles,
and in direct violation of the constitutional right of the citizen, as set forth in the Declaration of
Rights, article 14, which declares that every subject has a right to be secure from all
unreasonable searches and seizures of his person, and that all warrants, therefore, are
contrary to this right, if the order in the warrant to a civil officer to arrest one or more
suspected persons or to seize their property be not accompanied with a special designation
of the persons or objects of search, arrest or seizure. This is in fact only a declaration of an
ancient common law right. It was always necessary to express the name or give some
description of a party to be arrested on a warrant; and if one was granted with the name in
blank, and without other designation of the person to be arrested, it was void. (1 Hale P. C.
577. 2 Ib. 119. Foster, 312. 7 Dane Ab. 248. 1 Chit. Crim. Law, 39. Mead vs. Haws, 7 Cow.,
332, and cases cited.)
This rule or principle does not prevent the issue and service of a warrant against a party
whose name is unknown. In such case the best description possible of the person to be
arrested is to be given in the warrant; but it must be sufficient to indicate clearly on whom it is
to be served, by stating his occupation, his personal appearance and peculiarities, the place
of his residence, or other circumstances by which he can be identified. (1 Chit. Crim. Law,
39, 40.)
The warrant being defective and void on its face, the officer had no right to arrest the person
on whom he attempted to serve it. He acted without warrant and was a trespasser. The
defendant whom he sought to arrest had a right to resist by force, using no more than was
necessary to resist the unlawful acts of the officer . . .
The defendants, therefore, in resisting the officer in making an arrest under the warrant in
question, if they were guilty of no improper or excessive force or violence, did not do an
unlawful act by lawful means, or a lawful act by unlawful means, and so could not be
convicted of the misdemeanor of a riot, with which they are charged in the indictment.
Appellant's argument, as based on these authorities, runs something like this. The law, constitutional
and statutory, requires that the search warrant shall not issue unless the application "particularly"
describe the person to be seized. A failure thus to name the person is fatal to the validity of the
search warrant. To justify search and arrest, the process must be legal. Illegal official action may be
forcibly resisted.

For the prosecution, however, as the arguments are advanced by the Attorney-General, and as the
law was summarized by the trial judge, there is much to be said. Careful and logical reflection brings
forth certain points of paramount force and exercising a decisive influence. We will now make
mention of them by correlating the facts and the law.
In the first place, the affidavit for the search warrant and the search warrant itself described the
building to be searched as "the building No. 124 Calle Arzobispo, City of Manila, Philippine Islands."
This, without doubt, was a sufficient designation of the premises to be searched. It is the prevailing
rule that a description of a place to be searched is sufficient if the officer with the warrant can, with
reasonable effort, ascertain and identify the place intended. (Steele vs. U. S. [1925], U. S. Supreme
Court Advance Opinions 1924-1925; 69 Law. ed., 757). The police officers were accordingly
authorized to break down the door and enter the premises of the building occupied by the so-called
Parliamentary Club. When inside, they then had the right to arrest the persons presumably engaged
in a prohibited game, and to confiscate the evidence of the commission of the crime. It has been
held that an officer making an arrest may take from the person arrested any money or property
found upon his person, which was used in the commission of the crime or was the fruit of the crime,
or which may furnish the person arrested with the means of committing violence or of escaping, or
which may be used as evidence on the trial of the cause, but not otherwise. (Moreno vs. Ago Chi
[1909], 12 Phil., 439.)
Proceeding along a different line of approach, it is undeniable that the application for the search
warrant, the affidavit, and the search warrant failed to name Jose Ma. Veloso as the person to be
seized. But the affidavit and the search warrant did state that "John Doe has illegally in his
possession in the building occupied by him, and which is under his control, namely, in the building
numbered 124 Calle Arzobispo, City of Manila, Philippine Islands, certain devices and effects used
in violation of the Gambling Law." Now, in this connection, it must not be forgotten that the Organic
Act requires a particular description of the place to be searched, and the person or things to be
seized, and that the warrant in this case sufficiently described the place and the gambling apparatus,
and, in addition, contained a description of the person to be seized. Under the authorities cited by
the appellant, it is invariably recognized that the warrant for the apprehension of an unnamed party
is void, "except in those cases where it contains a description personae such as will enable the
officer to identify the accused." The description must be sufficient to indicate clearly the proper
person upon whom the warrant is to be served. As the search warrant stated that John Doe had
gambling apparatus in his possession in the building occupied by him at No. 124 Calle Arzobispo,
City of Manila, and as this John Doe was Jose Ma. Veloso, the manager of the club, the police could
identify John Doe as Jose Ma. Veloso without difficulty.
Again, it must be remembered that No. 124 Calle Arzobispo was supposed to be used for club
purposes. It was not the home of Veloso; not the place of abode of the family, which the law carefully
protects in all of its sanctity. It was a club partially public in nature. It was, moreover, a camouflaged
club with a high sounding name calculated to mislead the police, but intended for nefarious
practices. In a club of such a character, unlike in the home, there would commonly be varying
occupancy, a number of John Does and Richard Roes whose names would be unknown to the
police.
It is also borne out by the authorities that, in defense of himself, any member of his family or his
dwelling, a man has a right to employ all necessary violence. But even in the home, and much less
so in a club or public place, the person sought to be arrested or to be searched should use no more
force than is necessary to repel the unlawful act of the officers. To authorize resistance to the agents
of the authority, the illegality of the invasion must be clearly manifest. Here, there was possibly a
proper case for protest. There was no case for excessive violence to enforce the defendant's idea of
a debatable legal question. (Commonwealth vs. Crotty, supra; People vs. Chan Fook [1921], 42
Phil., 230; 3 Groizard, Codigo Penal, pp. 456, 457.)

The trial judge deduced from the searched warrant that the accused Veloso was sufficiently
identified therein. Mention was made by his Honor of the code provision relating to a complaint or
information, permitting a fictitious name to be inserted in the complaint or information, in lieu of the
true name. The Attorney-General adds to this the argument that the police were authorized to arrest
without a warrant since a crime was being committed. We find it unnecessary to comment on this
contention.
John Doe search warrants should be the exception and not the rule. The police should particularly
describe the place to be searched and the person or things to be seized, wherever and whenever it
is feasible. The police should not be hindered in the performance of their duties, which are difficult
enough of performance under the best of conditions, by superficial adherence to technicality or far
fetched judicial interference.
We agree with the trial judge and with the Attorney-General in their conclusions to the effect that the
search warrant was valid, and that the defendant has been proved guilty beyond a reasonable
doubt, of the crime of resistance of the agents of the authority.
The information alleges that at the time of the commission of the crime, the accused was a member
of the House of Representatives. The trial court was led to consider this allegation in relation with the
facts as an aggravating circumstance, and to sentence the accused accordingly. We doubt,
however, that advantage was taken by the offender of his public position when he resisted the
officers of the law. The offender did not necessarily make use of the prestige of his office as a
means to commit a crime. Undoubtedly, Jose Ma. Veloso, as Juan de la Cruz, would have resisted
the police just as stoutly, as the Honorable Jose Ma. Veloso did. The penalty, accordingly, falls
within the medium of that provided by the Penal Code.
Finding present no reversible error, agreeing in all respects with the findings of facts as made by the
trial judge, and concurring with the trial judge in his legal conclusion, with one exception, it results
that the judgment appealed from must be, as it is hereby, affirmed, with the sole modification that the
defendant and appellant shall be sentenced to two months and one day imprisonment, arresto
mayor, with the costs of this instance against him. Let the corresponding order to carry this judgment
into effect issue.

**
FIDEL B. FORTUNO, petitioner,
vs.
THE DIRECTOR OF PRISONS, respondent.
Fidel B. Fortuno on his own behalf.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Ramon L. Avancea for
respondent.
PARAS, J.:
This is a petition for the writ of habeas corpus in which the petitioner, a prisoner whose aggregate
penalty is more than twenty years of imprisonment counted from October 8, 1941, seeks his
immediate release.
The first ground is that the recommitment order issued by the Board of Indeterminate Sentence on
October 4, 1941, directing the confinement of the petitioner for the unexpired portion of his maximum

sentence in case No. 9587 of the Court of First Instance of Rizal (2 years, 4 months and 22 days),
was illegal and otherwise premature, because (1) petitioner's one-day trip to Santa Rosa, Laguna,
merely to get money from his relatives, did not constitute a violation of his parole that he was to live
in Manila and not to change his residence during the period of his parole without the prior permission
of the board, and (2) the mere filing against the petitioner of several complaints for estafa, without
final judgment of conviction, did not constitute a violation of another condition of his parole that he
was not to commit any crime and was to conduct himself in an orderly manner. Petitioner's position
is untenable. Without deciding whether or not his visit to Santa Rosa without first securing the
consent of the board was a violation of one of the conditions of his parole, it may safely be held that
he broke the other condition; namely, that he would not commit any crime, since the petitioner was
prosecuted for and finally convicted of the series of estafa committed by him during the period of his
parole. Petitioner's contention that the recommitment order was premature, because it came down
before his convictions, is now rather academic, even assuming that final conviction is necessary in
order to constitute a violation of the condition in dispute.
The second ground is that the additional penalty of 10 years of imprisonment imposed upon the
petitioner in CA G.R. No. 79, was illegal and in excess of the jurisdiction of the court, because his
conviction for illegal possession of counterfeit bills should not be counted for habitual delinquency
purposes, since said conviction is not for robbery, theft, estafa or falsification. In other words,
petitioner's contention is that his previous conviction for illegal possession of counterfeit bills was
wrongly included. Such mistake, even if true, cannot be corrected in a proceeding for habeas
corpus, for there is virtually no difference between the alleged error and that pointed out
in Paguntalan vs. Director of Prisons, 57 Phil., 140, wherein it was held that the error of counting as
separate convictions various convictions which should be counted as one due to the proximity of the
commission of the crimes, should "have been corrected by appeal, for it was rather an error of
judgment and not an undue exercise of judicial power which vitiates and nullifies the proceeding."
Petitioner also argues that the information in CA G.R. No. 79 did not contain any allegation that
he was an habitual delinquent, though it was alleged therein that he was a recidivist. Apart from the
absence of proof on the point, and from the legal presumptions that the court acted lawfully in the
exercise of its jurisdiction and performed its duty regularly (section 69, pars. m and n, Rule 123), the
alleged defect may be likened to that referred to in Domingo y Reyes vs. Director or Prisons, 44 Off.
Gaz., 2201, wherein we said that "the allegation, if true, that the judgment of conviction was
rendered without a plea of guilty properly entered by the accused to the lesser offense of homicide,
is merely a defect of procedure, not of jurisdiction, though it may have the effect of voiding the
judgment," and "cannot be reviewed in habeas corpus proceedings wherein the only issue is
whether or not the petitioner is entitled to release."
The third ground is that the petitioner is entitled to a special allowance of one-fifth of his aggregate
penalty on account of his failure to escape from his place of confinement during the war. Our ruling
on this feature of the case has to be adverse to the petitioner, inasmuch as we have already held
that "the special allowance for loyalty authorized by articles 98 and 158 of the Revised Penal Code
refers to those convicts who, having evaded service of their sentence by leaving the penal institution,
give themselves up within two days," and not to those who have not escaped. (Artigas Losada vs.
Acenas, 44 Off. Gaz., 2694.)
It appearing that the petitioner has not yet served his total term of imprisonment, as the periods
sought by him to be deducted are not allowable, the petition will be, as the same is hereby, denied
without costs. So ordered.

**

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ARTURO ALICIA and VICTOR

BANGAYAN, Defendants-Appellants.

DECISION

PER CURIAM:

Before the Circuit Criminal Court, Seventh Judicial District, the accused, Arturo Alicia and Victor Bangayan,
were charged with the crimes of Murder and of Multiple Frustrated Murder (Criminal Case No. CCC-VII-1391Rizal) committed as follows:
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"That on or about the 2nd day of May, 1972, in the New Bilibid Prison, Muntinlupa, Rizal, Philippines, and
within the jurisdiction of this Honorable Court, the aforenamed accused, while then confined at the said
institution, each armed with improvised deadly weapons, conspiring, confederating and acting together and
mutually helping one another, with treachery, evident premeditation and deliberate intent to kill did then
and there willfully, unlawfully and feloniously assault, attack and stab:
chanrob1e s virtual 1aw l ibra ry

1. Pedro Madjos, No. 76970-P

2. Felipe Macerin, No. 53421-P
3. Victorio Sansanan, No. 58203-P
4. Sulficio Sulina, No. 79723-P.
all prisoners serving final sentences in the same institution while then unarmed and unable to defend
themselves from the attack launched by the accused thereby inflicting upon Pedro Madjos a stab wound
which directly cause his death and simultaneously inflicting upon Felipe Macerin, Victorio Sansanan and
Sulficio Sulina stab wounds in the different parts of their bodies, the accused having performed all the acts
of execution which would produce the offense of murder, but which nevertheless did not produce it by
reason of causes independent of their will, that is by the timely arrival of prison guards which deterred the
accused from inflicting further injuries on their victims and the timely and able assistance of the NBP
Hospital Staff in treating the injured,
Contrary to law."

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Upon arraignment, the accused, duly assisted by counsel, pleaded guilty to the charge. The trial court
ordered a mandatory presentation of the prosecutions evidence. Trial followed and on January 28, 1974,
the lower court rendered judgment, the dispositive portion of which reads, thus:
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"WHEREFORE, finding the accused, Victor Bangayan and Arturo Alicia, GUILTY, beyond reasonable doubt, of
the crime of Murder, as defined under Article 248 of the Revised Penal Code, as charged in the information,
the Court hereby sentences them to suffer the penalty of DEATH; to indemnify the heirs of the victim, the
amount of P10,000.00 jointly and severally; to pay moral damages in the amount of P5,000.00 and another
P5,000.00 as exemplary damages, jointly and severally; and to pay their proportionate shares of the costs.
"Likewise, finding the accused, Victor Bangayan and Arturo Alicia, GUILTY beyond reasonable doubt, of the
crime of Multiple Frustrated Murder, as defined under Article 250 of the Revised Penal Code, as charged in
the information, the Court hereby sentences each one of them to suffer the penalty of TEN (10) YEARS AND
ONE (1) DAY of prision mayor, as minimum, to SEVENTEEN (17) YEARS AND FOUR (4) MONTHS of prision
mayor as maximum, to indemnify the heirs of the offended parties in the amount of P5,000.00 as moral
damages and another P5,000.00, as exemplary damages, jointly and severally; and to pay their
proportionate shares of the costs.
x

The case is now before Us on automatic review pursuant to Rule 122, Section 9 of the Rules of Court.

The prosecution presented as its witnesses Dr. Argente Alejandro, Tolentino Avelina, Francisco Cometa, Jr.,
Sulficio Sulina, Loneida Panopio and Dr. Mariano Cueva, Jr.
Dr. Argente Alejandro, a physician employed in the Bureau of Prisons Hospital, testified that he treated
Felipe Macerin who sustained two lacerated wounds (two inches right midaxillary line and one-third inch
around the right elbow just above the distal portion all over the bone), both of which could have been
caused by an improvised weapon usually used by prisoners in Muntinlupa; that he sutured the wounds and
gave the victim an IPS antitetanus syrup and antibiotic five per cent dextrose and water; that Felipe Macerin
had already been admitted to the hospital for treatment of siptomiasis when these injuries were inflicted
upon him; and that the injuries of Macerin had been cured and he recovered, but sixteen days after the
stabbing incident he died of Maxonia (the doctors certificate of the NBP Hospital shows that the cause of his
death is "Carcinoma-Liver").
He further testified that aside from Felipe Macerin, he also treated Sulficio Sulina and Victorio Sansanan for
injuries resulting from the stabbing incident at Ward 3 of the NBP Hospital; that Sulficio Sulina sustained
four (4) lacerated wounds (one inch subcostal left parasternal line; one inch supra clavicular region right;
two inches right elbow; and two inches hyposgastrion); that he conducted an exploratory operation,
suturing his urinary bladder which was penetrated in the distal part of the elum and part of the dentary
column; that the injuries of the internal organs of Sulina would have been fatal without surgical intervention
and that they could have been caused by an improvised weapon used by prisoners; that Sulficio Sulina
recovered from his injuries and was discharged on June 24, 1972; and that Victorio Sansanan was treated
by him for a superficial lacerated wound (one-half of an inch at the back lever of the dentary parasipital
area) which was not fatal.
Furthermore, he testified that another prisoner, Pedro Madjos, died in the hospital and his cadaver was
forwarded to the Muntinlupa Board of Investigation for autopsy; that he examined the cadaver and saw one
wound which is 1.5 cms., one foot long from the axillary line, which caused his death as it penetrated the
heart.
Tolentino Avelina, an investigator in the Investigation Section of the New Bilibid Prisons, declared that he
investigated a stabbing incident which transpired on May 2, 1972 inside Ward 3 of the New Bilibid Prisons
Hospital wherein Pedro Madjos, Felipe Macerin, Victorio Sansanan and Sulficio Sulina were attacked and
stabbed by other prison inmates, and that said investigation was reduced in writing (Exhibit "B"). He
declared that when he arrived at the office before 8:00 oclock in the morning on said date, he was informed
of the stabbing incident so he immediately proceeded to Ward 3 of the NBP Hospital to investigate and
determine who the victims were and their assailants. In the court of his investigation he took written
statements from appellant Arturo Alicia on May 2, 1972 (Exhibit "C") wherein the latter admitted before him
that he (Alicia) was the one who stabbed Pedro Madjos, Victorio Sansanan and Felipe Macerin (Exhibit "C-2")
with an improvised weapon (Exhibit "D"), and from Victorio Sansanan on July 1, 1972 (Exhibit "E"), one of
the victims in that incident, wherein Sansanan identified his assailant as Arturo Alicia. Sulficio Sulina
executed a written statement on June 19, 1972 (Exhibit "F "3, pointing to Victor Bangayan (Exhibit "F-2") as
his assailant.
Francisco Cometa, Jr., a prison guard in the Investigation Section of the Bureau of Prisons, testified that he
investigated prisoner Victor Bangayan on May 2, 197a, in connection with the stabbing incident at the NBP
Hospital and reduced the investigation in writing (Exhibit "I"); that in that statement, Bangayan admitted
that he was one of those who attacked the victims (Exhibit "I-2") and that he used an improvised deadly
weapon (Exhibit "I-3"); that appellants explained that they attacked and stabbed their victims because the
latter were members of the rival Batang City Jail Gang, and were planning to attack them and other
members of the Commando Gang.
Sulficio Sulina, one of the victims and an inmate in the New Bilibid Prisons, testified that on May 2, 1972, at
about 5:00 oclock in the morning, while confined in the hospital, he was stabbed five times by appellant
Victor Bangayan.
chanroble s.com : vi rtua l law lib rary

Leonida Panopio, a resident physician, testified that on May 2, 1972, she learned about a stabbing incident
where the victims were Madjos, Macerin, Sansanan and Sulina, and about the death of Madjos, and that she
accordingly prepared a death report (Exhibit "A-4").
Mariano Cueva, Jr., a physician and medico-legal officer of the NBI, testified that he personally conducted an
autopsy on the cadaver of Pedro Madjos, and his post-mortem findings are embodied in his Necropsy Report

No. N-72-845 (Exhibit "L"); that according to his findings, the stab would found on the left side of the
abdomen of the late Pedro Madjos was 14 cms. from the center line and 17 cms. above the hipbone, 1-1/2
inches in width, penetrating the body of the left, about 15 cms., involving vital structures and causing
serious or severe hemorrhage which caused his death; that the external characteristic of the wound
indicates that the stabbing instrument was sharp, pointed with double edges, like a dagger, a double edged
balisong, a knife or any similar stabbing instrument; that from the direction of the wounds, it appears that
the assailant was in front of the victim when he attacked him; that the death could have occurred several
minutes or an hour after the injury was inflicted; and that it is possible that the attack was sudden and
unexpected in view of the absence of any sign that the victim attempted to parry the blow.
During the trial, the appellants testified in their behalves.
Appellant Victor Bangayan, an inmate of the New Bilibid Prisons, Muntinlupa, Rizal, testified that he is
presently confined at the New Bilibid Prisons, serving sentence for the crime of robbery holdup and at the
same time awaiting the outcome of his appeal from a judgment of conviction in a murder case wherein he
was sentenced to suffer the penalty of death (G.R. No. L-36234, submitted for decision with this Tribunal).
He declared that when the incident took place, he was confined at the NBP Hospital due to swollen jaw and
recuperating from fever. He claimed that he stabbed Madjos because they quarreled in a gambling game
wherein the latter cheated him. After he stabbed the victim he surrendered voluntarily to the prison
authorities and voluntarily gave his statement to the investigators.
Arturo Alicia, also an inmate of the New Bilibid Prisons, testified that he is serving sentence for the crime of
robbery he committed in Manila; that on May 2, 1972, he bad a drinking spree with his companions, using
alcohol which they bought from a hospital attendant; that after drinking he went to his "tarima" ; that all he
knew was that he stabbed Pedro Madjos but he had no intention of killing him; that on the date of the
incident he was confined in the hospital because he was vomiting blood; that he also stabbed Victorio
Sansanan and Felipe Macerin; and that after the incident he surrendered to the authorities and voluntarily
gave his statement to them.
It has been sufficiently established by the evidence that in the early morning of May 2, 1972, Pedro Madjos,
Felipe Macerin, Victorio Sansanan and Sulficio Sulina, all persons serving sentences for one reason or
another and confined in Ward 3 of the prison hospital, were attacked and stabbed by appellants who were
armed with improvised pointed instruments. This resulted in the death of Pedro Madjos and the infliction of
numerous stab wounds on the persons of Macerin, Sansanan and Sulina, injuries which could have caused
their death were it not for the timely arrival of prison guards and for the medical assistance rendered to
them by the prison hospital personnel. Macerin was about to plug in an electric iron when he was stabbed by
prisoner Arturo Alicia. Pedro Madjos was massaging the body of Victorio Sansanan, who was then suffering
from asthma, when he and Victorio were stabbed by Arturo Alicia. Sulficio Sulina was stabbed by Victor
Bangayan while he was asleep on a mat laid on the cement floor of Ward 3, adjacent to the attendants
table, Appellants admitted to the investigators that they stabbed the victims because of the reported plan of
the latter to attack them the following day. Hence, in the evening of May 1, 1972, appellants Alicia and
Bangayan decided to attack the members of the Batang City Jail Gang early the following morning.
In her brief, counsel de oficio for the appellants, Atty. Eugenia Banzon-Jose, contends that appellants acted
in self-defense in view of the imminent attack upon them by the rival gang; that none of the elements which
would qualify the crime as murder had been proven; that the aggravating circumstance of recidivism should
not have been applied, and on the contrary, appellants should have been given the benefit of the mitigating
circumstances of voluntary surrender and plea of guilty.
To begin with, a plea of guilty admits all the material allegations of the Information, including the attendant
circumstances qualifying and/or aggravating the crime. Prescinding from the foregoing self-defense is an
affirmative allegation which the accused must prove with sufficient, satisfactory and convincing evidence. 1
Here, no such evidence has been presented.
To support the claim that the offense was not qualified by treachery, the counsel de oficio makes capital of
the testimony of Dr. Cueva to the effect that when Pedro Madjos was stabbed, his assailant was in front of
him, hence the attack on the victim was face to face. But the same witness, Dr. Cueva, also testified that it
was possible that the attack was sudden and unexpected because of the absence of any sign that the victim
attempted to parry the stabbing thrust, and appellants admitted that to insure the success of their ploy they
suddenly attacked their victims during the early dawn of May 2, 1972. As a matter of fact, Sulficio Sulina
was still sleeping on the floor when he was stabbed five times by appellant Victor Bangayan.

The existence of the qualifying circumstance of premeditation is shown by the fact that as early as the
evening of May 1, 1972, appellants agreed to attack their victims, which plan they executed in the early
morning of the following day. From the time they agreed on their plan until dawn of the next day when the
plan was implemented, sufficient time had elapsed to allow appellants to meditate and reflect upon their
plan and the possible consequences of their act. This decision on the part of appellants to attack their
victims, was, therefore, the result of meditation, calculation or reflection. 2
Appellants counsel de oficio makes much ado about the fact that the trial court questioned appellants as to
the fact of their previous conviction. This, she contends, violated the constitutional rights of the appellants
against self-incrimination.
The trial courts question as to the nature of the offense for the commission of which appellants were serving
sentence did not call for incriminating answers. The fact that appellants, at the time of the commission of
the crime, were prisoners in the New Bilibid Prisons serving sentence by final judgment is not disputed. The
status of appellants as such appears in their extrajudicial confessions (Exhibits "C" and "I") which were
submitted in evidence. Since the Information alleges that appellants committed the aforementioned crime
"while then confined" in the New Bilibid Prisons, and the evidence of the prosecution shows that they were
inmates of the New Bilibid Prisons serving sentence by virtue of final judgment, it was proper for the trial
court to inquire as to the nature of the offense for which they were serving sentence.
chanrob les vi rtua lawlib rary chan robles .com:cha nro bles.c om.ph

The lower court correctly found the existence of the special aggravating circumstance of quasi-recidivism,
defined under Article 160 of the Revised Penal Code. Article 160 of the Revised Penal Code provides:
jgc:c hanro bles. com.ph

"ART. 160. Commission of another crime during service of penalty imposed for another previous offense.
Penalty. Besides the provisions of rule 5 of article 62, any person who shall commit a felony after having
been convicted by final judgment, before beginning to serve such sentence, or while serving the same, shall
be punished by the maximum period of the penalty prescribed by law for the new felony."
cralaw virtua 1aw lib rary

Quasi-recidivism is a special aggravating circumstance which imposes the maximum of the penalty for the
new offense. It makes no difference, for the purpose of the effect of quasi-recidivism under Article 160 of
the Revised Penal Code, whether the crime for which an accused is serving sentence at the time of the
commission of the offense charged, falls under the said Code or under special law. 3 Quasi-recidivism is
punished with more severity than recidivism proper because the aggravating circumstance of recidivism, as
any other aggravating circumstance, may be offset by a mitigating circumstance present in the commission
of the crime, whereas. in a case of quasi-recidivism, the maximum degree of the penalty prescribed by law
for the crime committed should always be imposed irrespective of the presence of any mitigating
circumstance.
In the case at bar, both appellants Arturo Alicia and Victor Bangayan were serving sentence for robbery by
virtue of final judgment when they committed the new felony. The existence of quasi-recidivism renders
moot the argument of appellants counsel that the trial court failed to consider certain mitigating
circumstances which should have entitled the appellants to a lower penalty. Although the counsel de oficio of
appellants is correct in her statement that after the commission of the crime appellants voluntarily
surrendered to the authorities and executed statements admitting their criminal participation, and that both
pleaded guilty to the offense, those circumstances notwithstanding, the imposition of the supreme penalty is
in order. 4 However, for lack of necessary votes, the penalty to be meted the appellants must be reduced
to reclusion perpetua.
WHEREFORE, premises considered, the judgment of the trial court is AFFIRMED, with the modification that
the appellants are hereby sentenced to suffer the penalty of reclusion perpetua. The indemnity of
P10,000.00 in the murder case is hereby raised to P12,000.00.