G.R. No. 1639. August 18, 1905

It is an established fact that on the 19th of April, 1903, the
defendant Ricardo Delfin, a corporal of the Philippines Constabulary,
while on duty with three other soldiers at the San Lazaro Hospital, in
the district of Santa Cruz, and while on guard in the quarantine
department, after having absented himself from his post on the morning
of the day in question, he returned about noon in a carromata, and, on
the pretext that he had received a communication wherein he was
directed by the captain of his command to gather the arms then in the
possession of his soldiers, he proceeded to do so, taking away from
privates Loriano (or Laureano) de la Rosa and Eugenio Patrimonio their
revolvers and ammunition. He failed however, to obtain the revolver of
the other private, Alberto Dimalanta, either because he could not find
it or because the latter refused to turn it over to him. It further
appears that the defendant immediately drove down Calle Magdalena and
did not return thereafter, either to his post or to the Constabulary
barracks; that the three soldiers then reported the occurrence to their
superiors and, upon an investigation of the facts, it was found that
the defendant, Ricardo Delfin, had deserted, taking away with him the
two revolvers of the soldiers under his charge, together with the
ammunition on hand.

Some time in the month of August of the same year, a corporal of
Constabulary, Prudencio Bustos, who had received certain orders and
instructions from his superiors, while stationed at Macabebe, Pampanga,
sought and arrested the defendant at the railway station at Calumpit,
Bulacan, while the latter was about to board an outgoing train by
pointing his revolver at him in order to overcome any resistance on the
part of said defendant, Ricardo Delfin, who through fear surrendered to
the corporal and, upon being asked, stated that he was on his way to
Dagupan ; he was thereafter brought to this city and turned over to the
authorities.

It is therefore an established fact that the defendant, Ricardo
Delfin, abandoned his post while in charge of a guard and deserted,
taking with him the arms and ammunition of two of his subordinates in
violation of military discipline and of the provisions of Act No. 619,
dated February 6, 1903.

The defendant pleaded “not guilty” to the charge of desertion, but
his guilt is manifest, and was proved at the trial by the testimony of
witnesses and by the fact that, being a member of the Constabulary or
Insular police, receiving pay and being duly enlisted therein, he
absented himself therefrom without leave, and with intent not to return
thereto, and did not thereafter return to his post or otherwise report
to his superior officers, but, on the contrary, some six months after
his desertion, he was arrested while about to board a train bound for
Dagupan, Pangasinan.

There should be taken into consideration the fact that the defendant
absented himself without first having obtained permission from his
superior officers, and with the deliberate intention of remaining away,
and that, upon deserting, he took with him the arms and ammunition
belonging to his subordinates.

The evidence introduced by the prosecution in this case can not be
overcome by the allegation of the defendant that he was kidnaped and
taken away to the mountains by five brigands, and that he only
succeeded in making his escape from them some five months afterwards.
His story is highly improbable considering the place and circumstances
under which he claimed to have been kidnaped; furthermore, he offered
no evidence in support of this allegation. He is therefore guilty of
desertion and should be punished in accordance with section 7 of Act
No. 619 of the Philippine Commission of February 6, 1903, which is as
follows:

“Any member of the Constabulary who, having received
pay or been duly enlisted therein, absents himself therefrom without
leave and with intent not to return thereto, or advises or persuades
others to do the like, shall be fined not exceeding two thousand
dollars or imprisoned not exceeding two years, or both.”

That act, however, does not authorize subsidiary imprisonment in
case of nonpayment of the fine imposed therein. The provisions of the
Penal Code and the provisional law relating to subsidiary imprisonment,
and the crediting of the defendant with the time he was held in
detention, have no application to crimes punished under this special
act of the Commission, which is based upon principles and a system of
legislation entirely different from those upon which our Penal Code is
based.

For the reasons hereinbefore set out, we are of opinion that the
decision of the court below, dated the 13th of October, 1903, should be
and is hereby affirmed, and the defendant, Ricardo Delfin, is sentenced
to two years of imprisonment at hard labor and to pay the costs of
these proceedings, and a fine of two thousand pesos, Philippine
currency, without subsidiary imprisonment in case of insolvency, not
being entitled to credit for the time he was held in detention.

Let the cause be remanded to the court from whence it came, with a
certified copy of this decision, and of the judgment to be entered in
accordance herewith for its execution. So ordered.

Arellano, C.J., Mapa, Johnson, Carson, and Willard, JJ., concur.