THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. GELASIO TABIANA AND JULIAN CANILLAS, DEFENDANTS AND APPELLANTS.

This is an appeal from a decision of the Court of First Instance of the
Province of Iloilo convicting the defendants upon the charge of attack upon
agents of public authority, in violation of article 249, Penal Code, in
connection with the second subsection of article 250, Penal Code. The offense is
alleged to have been committed in the municipality of Leon, Iloilo, upon the 23d
day of February, 1915.

At the time of the acts giving rise to this prosecution the defendant Gelasio
Tabiana was a well-respected citizen of the municipality of Leon, was a member
of the municipal council, and had twice served as municipal president. He was
also at the time a candidate for reelection to the latter office. The defendant
Julian Canillas was also a public officer, occupying the position of justice of
the peace of the municipality. The two men were brothers-in-law and occupied the
same house. On the morning of the date above-mentioned, a neighbor of Gelasio
Tabiana had appeared before Julian Canillas, justice of the peace, and had
procured from him a warrant for the arrest of Tabiana and his herdsman upon the
charge of a trivial misdemeanor, consisting of an alleged trespass committed
upon the complainant’s premises by Tabiana’s cattle. The defendant Tabiana was
subsequently acquitted upon this charge; but the offense which was the subject
of prosecution in the present case had its origin in circumstances connected
with the arrest under that warrant.

The acts which are the subject of the charge in this case occurred about 8
o’clock p. m. in the tienda of the defendant Tabiana, which is located
under the apartments occupied by him and Julian Canillas as a residence. Some
reference, however, to things which occurred earlier in the day is
necessary.

The warrant for the arrest of Tabiana and his herdsman was placed in the
hands of two policemen, Emiliano Callado and Baltazar Cabilitasan, who found the
defendant Tabiana about 4 p.m. out in the country. The defendant showed some
irritation and instead of coming, in at once told the policemen that he would
come in later and report at the municipal building with his herdsman, the other
defendant named in the warrant. The policemen consented, subject to the approval
of the chief of police, and went away. At 6 p. m., the defendant not having
appeared at the municipal building, the policemen were directed by the chief to
find him and have him come to the municipal building in obedience to the
warrant. The policemen then proceeded to the defendant’s house where they found
him in the company of friends. When the policemen announced their errand Tabiana
showed further resentment over the idea of being arrested but yielded and
started to the municipal building with the two policemen. In passing near the
market place Tabiana detached himself from the custody of the policemen without
their consent and entered the market. The policemen appear to have been
considerate and respectful to Tabiana and, instead of following the defendant
into the market, they waited about half an hour, at the end of which time they
went into the market and found Tabiana with some of his friends. As Callado, one
of the policemen, approached the defendant the latter arose and asked for the
warrant saying. “Unless you show me the warrant of arrest I shall not go with
you.” Callado drew the warrant from his pocket; and as he showed it to the
defendant the latter took it, looked at it,’ and put it into his pocket. After
that he said, “Come along” and gave the policeman a push, as did also more than
one other of Tabiana’s friends.

The party then repaired to the municipal building but as it was getting late,
the chief of police and other officials were gone. This had the effect of
further angering Tabiana, and the result was that while one of the policemen ran
to find the chief of police, Tabiana and his friends left the municipal
building, saying that they were going to find the justice of the peace, the idea
being to find somebody who could set the defendant at liberty on bail. As the
justice of the peace lived with Tabiana, they of course directed themselves
towards Tabiana’s residence. It may be considered that their departure from the
municipal building was effected with the consent of the policemen.

Presently, however, the chief of police arrived at the municipal building,
and learning what had taken place, he dispatched the two policemen already
mentioned and a third named Leon Cajilig to go after Tabiana and procure the
return of the warrant of arrest and to insist that Tabiana should come down at
once so that the matter could be finished, or as another witness expressed it,
to bring him (meaning Tabiana) to the police station.

When the policemen arrived they found Tabiana in his tienda, with a
number of friends on hand. When he was requested to give up the warrant and go
to the police station he denied having taken the warrant; and one of Tabiana’s
friends upstairs called out, “If he has no warrant send him up for a beating.”
Tabiana then approached the policeman, Callado, and hit him in the breast with
his hand or fist, at which instant the policeman seized him by the wrist and
resistance ceased. As the policeman started to carry the prisoner away two
bystanders interfered and took him away from the policeman. By this time Julian
Canillas, the justice of the peace, had arrived on the scene and being evidently
excited, he hit Callado on the back, when he too was stopped by another
policeman. Meanwhile Tabiana seems to have retired to his apartment, and Julian
Canillas directing himself to the policeman said, “Go back to the municipal
building and tomorrow you will take those clothes off,” referring to the
uniforms worn by the policemen. Canillas also appears to have spoken other
excited words little comporting with the dignity and duties of his office. The
policemen then went away, which may be attributed not only to the command of the
justice of the peace but also to the fact that some of Tabiana’s friends
indicated a determination to fight if the policemen should persist in their
purpose of arresting Tabiana. We do not believe that Tabiana should be held
responsible for these menaces, nor for anything that occurred after he was taken
in hand by the policeman, as his active resistance had then ceased.

At the beginning of this altercation the defendant Tabiana may have
entertained the idea that inasmuch as the warrant of arrest had been gotten out
of the hands of Callado the authority of the latter to effect the arrest had
thereby ended. This of course was a mistake, as Tabiana then had the warrant
wrongfully in his own possession, and he cannot be permitted to take advantage
of the fact that he was withholding it from the officer charged with its
execution.

From the proofs of record we are convinced that everything done by Tabiana
upon this occasion is properly referable to the idea of resistance and grave
disobedience. We discern in his conduct no such aggression as accompanies the
determination to defy the law and its representative at all hazards. Upon the
previous occasions of his contact with the policemen on this day, Tabiana
yielded, though with bad grace; and it is evident that he would, upon this
occasion, have, gone to the police station again if it had not been for the acts
of others in rescuing him, and for the intervention of the justice of the peace,
who ordered the policemen to desist.

Upon the whole we find the defendant Tabiana guilty of resistance and serious
disobedience to public authority under article 252, Penal Code, and not of the
more serious offense indicated in subsection 2 of article 249, Penal Code, which
was applied by the Court of First Instance. The question whether an offense
consists of simple resistance or of grave resistance is to be determined with a
view to the gravity of the act proved and the particular conditions under which
committed. In considering this question reference should also be had to the
nature and extent of the penalties attached by the authors of the Code to the
different offenses. Thus, when it is observed that the offense indicated in
article 249 carries with it a penalty ranging from prision correccional
to prision mayor in its minimum degree, with corresponding fines, it is
obvious that the lawmaker here had in mind serious offenses, characterized in
part at least by the spirit of aggression directed against the authorities or
their agents. It should be observed that the circumstances mentioned in
subsections 1 to 4 of article 250 are not qualifications of the definition
contained in article 249 but are aggravating circumstances which are to be used
in the application of the penalties. This means that the mere fact that an
offense of resistance happens to be characterized by some circumstance mentioned
in one of these subsections does not necessarily determine that the offense
falls within the definition contained in article 249. It is obvious, for
instance, that a Government functionary may commit an offense under article 252
as well as under article 249; and the relative gravity of the offense determines
whether it falls under the one article or the other.

The greatest hesitancy which we have felt in applying article 252 instead of
article 249 to this case arises from the words “shall employ force against them”
(emplearen fuerza contra ellos) contained in article 249. These words,
taken without reference to the context, would seem to make absolutely necessary
the application of article 249 in every case where any degree of force is
exerted. We believe, however, that the words quoted are to be understood as
applying to force of a more serious character than that employed in the present
instance. We are led to this conclusion not only because of the grave penalty
attached, as indicated above, but for the further reason that the Code mentions
grave resistance further on in the same paragraph and also makes special
provision for the offense of simple resistance in article 252. Now practically
and rationally considered in connection with the subject of arrest, resistance
is impossible without the employment of some force. A man may abscond or evade
or elude arrest, or may disobey the commands of an officer without using force
but he cannot resist without using force of some kind or in some degree. If at
the ultimate moment no force is employed to resist, there is not resistance but
submission ; and if it had been intended that every manifestation of force,
however slight, against the authorities and their agents should bring the case
under article 249, it was an idle waste of words to make other provisions to
cover grave resistance and simple resistance. It therefore seems reasonable to
hold that the words in article 249 relating to the employment of force are in
some degree limited by the connection in which they are used and are less
peremptory than they at first seem. Reasonably interpreted they appear to have
reference to something more dangerous to civil society than a simple blow with
the hands at the moment a party is taken into custody by a policeman.

As to the defendant Julian Canillas we find that he participated in the
offense committed on this occasion, knowing that the defendant Tabiana was
liable to arrest under the warrant issued by himself; and he is therefore
punishable in the same manner.

The judgment of the court below is therefore modified and each of the
defendants is sentenced to two months and one day of arresto mayor, and
to pay a fine of “P125, with the accessory penalties and subsidiary imprisonment
in case of insolvency, as provided by law, with costs against the appellants. So
ordered.

Arellano, C. J., Johnson, Carson, and Fisher, JJ.,
concur.

Torres, J., did not sit in the case, but is of the opinion that the
councilor should be convicted and the justice of the peace acquitted.

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DISSENTING OPINION

ARAULLO, J., dissenting:

I do not agree with the foregoing decision. With all due deference to the
majority opinion, I believe the defendants should be acquitted.

From the statement of facts made in that decision, as well as from the
evidence introduced at the trial, it appears that the defendant, Gelasio
Tabiana, tried to avoid being taken by the policemen from the field in which he
was at the time and where these officers served him with the warrant of arrest
to the town or to the police station of the municipality, and also to avoid
appearing in said station, he preferring to report in the municipal building of
the town, as in fact he did on that same night; that, therefore, on being shown
the warrant of arrest in the field by the policeman Emiliano Callado, he told
said policeman and the latter’s companion to precede him to the pueblo,
that he would go there himself later on and meanwhile would look for his
herdsman, Vicente N., also included in the warrant of arrest, and with him would
appear at the municipal building; that when Tabiana reached the pueblo
he went directly to his house; that afterwards, while accompanied by the
policemen, he passed by the market, where he tried to elude the officers, and
then went to the municipal building, in which he inquired for the municipal
president, the chief of police, and the justice of the peace; but that, as none
of these officials were in the building, he returned home.

It is perfectly clear why the defendant, Tabiana, should have performed all
the acts above related, and also why he should have shown some irritation, as
said in the decision, at being required by the policemen to accompany them, if
we but take into account, on the one hand, as stated in the same decision, that
he was a citizen of good reputation in that municipality (Leon), was a member of
the municipal council, had been twice president of the municipality, and, at the
time of this arrest, was a candidate for the office of municipal president; and,
on the other hand, that, as also set forth in the majority opinion, the warrant
in the hands of the policemen for the arrest of Tabiana and his herdsman had
been procured upon the charge of a trivial misdemeanor consisting of an alleged
trespass upon the complainant’s premises by Tabiana’s cattle.

From the same statement of facts and from the evidence, it appears that the
chief of police, Vicente Gison, was extremely anxious to have Gelasio Tabiana
brought into his presence by the policemen and to have these officers conduct
him to the police station by virtue of that warrant, for, at first, after the
two policemen had accepted, conditional upon the approval of the chief of
police, Tabiana’s proposal to present himself together with his herdsman later
on in the municipal building, the chief, on learning at 6 o’clock that evening
that the defendant had not yet put in an appearance in the municipal building,
ordered the policemen (as stated in the majority decision) to go and look for
him and see that he appeared at said building, in obedience to the warrant. But
as the defendant, Tabiana, did in fact appear there and a short while afterwards
returned home, as aforesaid, on account of not finding in the building either
the municipal president, the chief of police, or the justice of the peace, said
chief of police, arriving a little later at the municipal building, on learning
of what had occurred, sent (as is also stated in the majority decision) the two
aforementioned policemen, and another named Leon Cajilig, that is, three
policemen, to search for Tabiana, make him return the warrant of arrest, and
insist upon his immediate appearance in order that the case against him might be
terminated, or, as stated by another witness, that Tabiana might be brought to
the police station.

That Tabiana should have been somewhat vexed on arriving at the municipal
building not to find either the municipal president, the chief of police, or the
justice of the peace is perfectly conceivable, because he went to comply with
his duty to present himself before the official who had ordered his arrest, and
because, according to his own testimony corroborated by other witnesses, he
intended there to present bondsmen for the purpose of securing his bail. The
fact that Tabiana did present himself in the municipal building that evening is
the best proof, of the falsity of the testimony of the policemen to the effect
that a few moments before his arrival there and while in the market, upon being
approached by one of these latter, Emiliano Callado, Tabiana demanded to be
shown the warrant of arrest, and that when Callado showed it to him, the
defendant put it into his pocket, subsequently denying having it in his
possession. The” very fact that the defendant did appear in the office of the
municipal president that evening proves that he knew that a warrant of arrest
had been issued against him, and unquestionably his subsequent denial that he
had it could be of no avail. Moreover, it is stated in the majority decision, in
relating what occurred when Tabiana repaired to the municipal building and did
not find the said authorities there, that “this had the effect of further
angering Tabiana, and the result was that while one of the policemen ran to find
the chief of police, Tabiana and his friends left the municipal building, saying
that they were going to find the justice of the peace, the idea being to find
somebody who could set the defendant at liberty on bail. As the justice of the
peace lived with Tabiana, they of course repaired to Tabiana’s residence. It may
be considered that their departure from the municipal building was effected with
the consent of the policemen.” To these statements of the majority decision
there should be added, according to the opinion of the undersigned, that by
those acts Tabiana demonstrated that he did not intend to resist service of the
warrant of arrest, that, on the contrary, he respected the writ but desired to
avail himself of the right he had to procure his provisional release under bail
by applying to the justice of the peace, the official competent to grant it, and
of his right to be. accompanied by the persons who were willing to give the
bail, as the evidence shows that they were.

Perhaps the matter would have ended here, if the three policemen—whom their
chief Vicente Gison ordered, as aforesaid, to search for Tabiana, make him
return the warrant, insist that he present himself immediately, and bring him
under arrest to the police station—had not gone to Tabiana’s residence, where
the justice of the peace Julian Canillas also lived.

In the foregoing decision it is stated that the facts proven at the trial
constitute, not the offense of assault upon persons in authority, denned in
article 249, paragraph 2, of the Penal Code, but that of resistance and grave
disobedience to such persons or to their agents, provided for and punished by
article 252 of the same Code; and from the statement of facts contained in said
decision, it is deduced that the resistence and disobedience consisted, not
precisely in said defendant’s delay and tardiness in presenting himself before
the chief of police in compliance with the warrant of arrest served upon him by
the policeman, Callado, and in having uttered in the market and in his own house
the words attributed to him by said policemen; but in the fact, primarily, that
the defendant, when in the market and upon being served by the policeman,
Callado, with the warrant of arrest, gave the latter a push, after saying to him
“Come along,” and also in the facts that while the policemen were in the store
of Tabiana’s house to demand of him the return of the warrant and that he
accompany them to the station, Tabiana denied having taken the warrant; that one
of his friends cried out from above, “If they have no warrant of arrest, send
him up here and we’ll give him a thrashing,” on which occasion Tabiana
approached the policeman Callado and gave him a blow on the breast with his
fist; and, finally, that on being taken away under arrest, the defendant was
snatched from the policeman’s custody by two of the persons present in the
store; that the justice of the peace Julian Canillas, who arrived on the scene
just at that moment, gave the policeman Callado a blow on the back; that being
prevented by another policeman from continuing to strike, he forthwith ordered
the policemen to return to the municipal building; and that Canillas in his
excitement made use of words unbecoming the dignity and duties of his
office.

There is complete and absolute contradiction between the evidence presented
by the prosecution and that presented by the defense. While the witnesses for
the prosecution declared that certain facts occurred, those for the defense
denied the same, relating in other terms what took place between the policemen
and the defendant Tabiana, first in the market, then between him and his
brother-in-law Julian Canillas, on the one hand, and the policemen, on the
other, in the store of the house in which Tabiana and Canillas resided.

With respect to the push which it is said Tabiana gave the policeman,
Callado, when they were in the market, after the warrant of arrest had been
served upon the former by the latter, testimony was given by the police officer,
Callado, his companion Baltazar Cabilitasan, and another witness named Ceferino
Calucas.

With respect to the blows given, according to the prosecution, by Tabiana and
the defendant justice of the peace, Julian Canillas to the policeman Callado
while they were in the store, and in regard to what then occurred, testimony was
given by the same policemen and another, Leon Cajilig, who went with them to
said house, and by two other witnesses, Tirso Vazquez and Anastasia Capacillo,
who stated that they were then in the aforementioned store.

As shown by the evidence, the defendant Tabiana, was at the time a member of
the municipal council, had twice been municipal president, and was a candidate
for the same office, supported by the Progresista Party, of which he was the
president in said municipality. Juan. Capalla—who filed the complaint that gave
rise to the warrant of arrest against Tabiana, accusing the latter and his
herdsman of a misdemeanor—was of the leaders and the president of the
Nacionalista Party in said municipality and also this party’s candidate for the
office of president of the same municipality, wherefore he was a political enemy
of Tabiana and had not been on friendly terms with him for a long time. It was
also proven that about one month prior to the filing of the complaint by Juan
Capalla against Tabiana which originated the warrant of arrest, on motion by
Tabiana the municipal council of Leon, of which he was one of the members,
passed a resolution to recommend to the provincial governor the temporary
suspension of Vicente Gison from the office of chief of police, on account of
there being pending against him two actions, one criminal, brought in the
justice of the peace court, for fraud, and the other, brought before the council
itself, for the violation of article 28 of the Municipal Code; and that on March
15,1915, that is, three months prior to the filing of the complaint against the
two defendants in this cause, on motion by Tabiana, who was still a councilor of
the municipality, the council sharply censured the official conduct of the said
chief of police, because of his manifest disobedience to the lawful orders of
the council by his failure to appear on the day and hour specified before the
committee appointed to investigate the charges brought against him, and
recommended to the provincial governor that Gison be dismissed from the office,
if, after investigation, his guilt should be proven.

In view of the foregoing facts, it is not at all strange that, upon being
served by the two policemen with the warrant of arrest issued on complaint filed
by his political enemy Juan Capalla, Gelasio Tabiana should have endeavored to
avoid being taken by the policemen to the chief of police, and that he should
have preferred to go to the municipal building and give bail to the justice of
the peace; nor is it at all strange, and it is rather perfectly conceivable,
that the chief of police, on his part, should have tried to annoy Tabiana by
having him conducted, not by a single policeman, as could have been done in view
of the trivial misdemeanor that gave rise to the complaint against him, but by
two policemen, as if it were a question of a dangerous criminal; nor that the
chief of police should have shown such a persistent determination to have the
defendant brought before him as to have had the policemen look for him at his
house on his return from the field, notwithstanding that Tabiana had promised
them that he would present himself at the municipal building; nor that after he
had done so and when he was looking for the justice of the peace for the purpose
of giving bail, the said chief should have sent three policemen to bring him to
the station. Indeed it is evident that the behavior of the chief of police could
only have been the result of the enmity that he harbored against Gelasio Tabiana
and, consequently, also against the latter’s brother-in-law and house companion,
the justice of the peace Julian Canillas, and of his desire to improve the
opportunity to revenge himself upon the defendant Tabiana on account of the
latter’s having asked for and obtained of the municipal council the temporary
suspension of the chief of police one month before, that is, on January 15,1915.
Moreover it cannot be denied that, though Tabiana had succeeded in getting the
municipal council to reprimand the chief of police for the reason above stated
and to request the provincial governor to dismiss him from office, that is, on
March 15, 1915, or three months before the filing of the complaint against
Tabiana in the present cause, the chief of police—who was still officiating as
such at the time of the trial and the examination of the policemen, his
subordinates, as witnesses for the prosecution, whom it was alleged Tabiana and
the other defendant Canillas had assaulted—could have influenced them to testify
as they did and as appears in their respective testimony. The mere perusal of
the statements made by them on the witness stand convinces the reader that they
tried to exaggerate the facts by attributing to Tabiana and his co-defendant,
Canillas, words and acts of resistance and insubordination to the authorities,
all of which were denied and contradicted by the defendants and their four
witnesses. To be convinced that such was the case, one needs but notice how said
policemen in their respective testimony repeated with almost exact uniformity
the words which they said they heard uttered by Gelasio Tabiana and his
brother-in-law, the justice of the peace, in the sense above stated on the
occasions referred to by these witnesses; and how they testified, almost
unanimously, with respect to the acts performed, as they declared, by Tabiana
and his codefendant, Canillas, which consisted in Tabiana’s having given the
policeman Callado a push in the market, and both defendants having struck this
same policeman while they were in the store of Tabiana’s house. And such is the
uniformity with which each one and all of these policemen testified with respect
to the said words that it would seem that they all had learned them by heart in
order to repeat them exactly in their respective testimony. With respect to the
aforementioned acts imputed to the defendants, it was easy for said witnesses to
relate them in the general manner in which they did. So, then, little or no
credence can be given to the testimony of the policemen, not only because of
what is shown by their testimony in itself, but also because their individual
testimony must necessarily be regarded as suspicious and partial in favor of the
prosecution, so shown by their own acts at the time of their execution of the
warrant for the defendant’s arrest, in view of the aforementioned antecedents as
well as of their relations with the chief of police Vicente Gison, who must have
entertained no very cordial sentiments towards Tabiana and the latter’s
brother-in-law Canillas,

It is true that a witness, not a policeman, Ceferino Calucas, corroborated
the testimony given by the policemen with respect to Tabiana’s pushing the
policeman, Callado. This witness stated that when he entered the market Tabiana
was already there; that a short while afterwards Callado arrived and went
directly into the market toward Tabiana; that the latter turned his head and
said: “Here is the policeman who wants to arrest me,” and then asked the
policeman where the warrant of arrest was, to which the latter replied: “Here it
is;” that Tabiana took the warrant from the policeman, went with it to a place
where there was light, read it, and then said: “Let’s go to the municipal
building,” and thereupon pushed the policeman, saying: “If you people want a
lawsuit, we’ll go to court; if you want a fight, we’ll fight;” and that
afterwards they went to the municipal building. This witness ended his testimony
by admitting that he had seen nothing more. The account of this witness differs
from that of the policeman Callado in respect to what occurred in the market
between the latter and his companion Cabilitasan, on the one hand, and Tabiana,
on the other. The policeman Callado in his testimony, after saying that he
waited about half an hour for Tabiana to come out of the market, stated that he
looked for the latter in the market; that in the doorway he met a man named
Apolonio Cajilig to whom he said that he was going to catch Tabiana because
witness had a warrant of arrest; that then he went to where Tabiana was, and
when within two brazas of him Tabiana stood up and said: “So then, here
is the policeman who is going to arrest me. * * * I am not afraid of all of
you,” and asked him where the warrant of arrest was; that upon witness replying
that he himself had it, Tabiana said to him that unless witness showed him the
warrant, he would not go with witness; that thereupon witness took the warrant
out of his pocket and showed it to Tabiana; that the latter took it, looked at
it and put it into his pocket, afterwards saying: “Let’s go,” and gave witness a
push; that thereupon Apolonio Cajilig ran toward witness, caught him by the coat
near his throat and also pushed him; that immediately another man named Damian
Calope likewise pushed him, as did also still another man named Maximo Asebuque;
that when these men had pushed him, witness said to them: “What are you doing
here outside?” that thereupon they went away; that Bernabe Calope approached
witness, caught him by the shoulder and told him not to insist on arresting
Gelasio Tabiana, because the latter knew more than witness; that witness replied
that such was indeed the case because Tabiana was a councilor, but that Tabiana
had to remain that night in witness’ custody because witness had a warrant of
arrest; and that after all this, Tabiana said to witness: “Let’s go to the
municipal building.”

As is seen, the policeman Callado quotes Tabiana as uttering on said occasion
several words more than those mentioned by the witness Calucas, and, like his
companion Cabilitasan, relates acts of aggression or assault which Calucas did
not mention in his testimony as committed by other men in Tabiana’s company in
the market at that same moment—nor did he even make any reference to the said
men—although, according to his own testimony, he was present when the policemen
and Tabiana left the market and went to the municipal building. Neither did the
policeman Callado say that on that occasion Tabiana uttered the following words:
“If you people want a lawsuit, we’ll go to court; and if you want a fight, we’ll
fight;” nor did the witness Calucas testify that Tabiana then said to Callado:
“So then, here is the policeman who is going to arrest me. I am not afraid of
all of you.” The fact that Calucas did not say these words—but only the others,
to wit, “If you people want a lawsuit, we’ll go to court; etc.” not mentioned by
the policemen Callado and Cabilitasan in their testimony relating what occurred
in the market, these being the very same words that with others were uniformly
repeated by said policemen and their companion Cajilig as having been uttered by
Tabiana and Canillas on the other occasions— taken in connection with the
discrepancy aforementioned between the testimony of the same witness and that of
said two policemen, raises the suspicion that, once learned, it was easier for
the witness to remember the words he was to put into Tabiana’s mouth on that
occasion than the acts he was to attribute to the latter and to the other men
who, according to the policemen, were then with Tabiana in the market. For this
reason, said witness made no mention of the presence there of Apolonio Cajilig,
of Damian Calope, and Maximo Asebuque, of Cajilig running towards the policeman
Callado, catching him by the coat near his throat, and pushing him, nor of the
other two pushing said policeman—all of which, if true, said witness would have
seen also.

Of the two witnesses for the prosecution who testified that they were present
when, the policemen being in the store of the defendants’ house, Tabiana gave
the policeman Callado a blow with his fist, and the other defendant, Canillas, a
blow on the back. The first, named Tirso Vazquez, stated that when Callado
entered the store Tabiana appeared, and the former said to the latter: “Señor
Gelasio, if the saints are merciful, let them return to me the warrant of arrest
you took from me, and come with me to the municipal building;” that then Tabiana
replied: “I have no warrant of arrest,” and immediately gave a blow with his
fist (he does not say to whom, but supposedly to the policeman) ; that when
witness tried to go out he met only Julian Canillas who, immediately after he
had entered, struck Callado a blow on the back; and that thereupon witness left
for home.

However, in reply to questions put immediately after testifying that on
trying to go out he saw only Julian Canillas, this witness stated that Francisco
and Meliton Canillas were in the doorway, and that many other people were there,
though he did not notice who they were. But this witness did not mention in his
testimony that when the policeman Callado requested Tabiana to return the
warrant of arrest to him and when Tabiana replied that he had not taken it, a
man named Apolonio Cajilig said that if they had no warrant of arrest they
should send them (the policemen) up for a thrashing; nor did he state that after
being seized by the wrist to force him outside, Tabiana struck the policeman ;
nor that by assisting Tabiana in his struggle with the policeman, Apolonio
Cajilig and Francisco Canillas prevented said removal; nor that when the
policeman Callado had his back toward the door Juan Canillas, the other
defendant, struck him on the back. All this, however, was related in the
testimony of the policeman Callado and his companions Cabilitasan and Leon
Cajilig as having then occurred.

Therefore said policemen and the witness Vazquez contradicted themselves.
Such contradiction shows the measure of credence that should be allowed the
testimony of this witness and the three policemen.

The other witness, Anastasia Capacillo, also presented by the prosecution as
an eyewitness to what occurred in the store, likewise limited her testimony to
saying that she went there that evening to buy some petroleum; that on entering
the door she saw Gelasio Tabiana strike the policeman; that afterwards she also
saw the justice of the peace strike him; and that when she observed that things
looked bad she returned home. It is strange that having seen Tabiana and the
justice of the peace Canillas strike the policeman, this witness should have
said nothing in her testimony about the struggle that then took place between
Tabiana, Francisco Canillas, and Apolonio Cajilig on the one hand, and the
policemen on the other (according to the testimony of these same policemen),
notwithstanding that she must have witnessed it because it all occurred at the
same time. It is further to be considered that this witness was an aunt, as she
herself stated, of the complainant, Juan Capalla, a political enemy of Tabiana
and the same person who filed the complaint causing the warrant of arrest to
issue against Tabiana which, with such inordinate zeal and with so much
determination, the chief of police Vicente Gison endeavored to enforce.

In view of the evidence presented by the prosecution, it cannot therefore be
considered as proven that the defendants performed the acts alleged to
constitute the offense of assault upon the agents of the authorities which, in
the majority decision, have been classified as an offense of resistance and
serious disobedience to such agents, nor that the defendants uttered the words
and phrases attributed to them indicative of opposition and disobedience to the
policemen when attempting to serve the warrant of arrest upon Tabiana, one of
the defendants. On the contrary, it very clearly appears from the evidence of
the prosecution that Tabiana did not seek to disobey the warrant of arrest, nor
did he fail to comply therewith, for—in compliance with his offer to the
policeman Callado that afternoon when the defendant was in the field, to wit,
that the officer might precede him to the pueblo, and that he (Tabiana)
would follow and meanwhile would go to look for his herdsman Vicente who was
also included in the warrant of arrest—he did in fact then return to the
pueblo and, first passing by the market, went, now accompanied by the
policemen, to the municipal building where he inquired for the municipal
president, the justice of the peace, and the chief of police. This he
undoubtedly would not have done if he had not intended to submit to the warrant
of arrest, or if he had planned to oppose it in the manner related by these
policemen, and much less if he had actually had the warrant in ‘his possession
and had refused to deliver it to the policemen (as the latter testified that he
did), in order to resist “returning with them to the municipal building that
same evening or to resist being taken by them to the police station—because the
defendant had already acknowledged service of the warrant in the municipal
building a few moments before, and therefore a denial of the existence of the
warrant could have served no purpose whatever.

On the other hand, from the evidence adduced by the defense it appears that
neither the defendants nor the persons who were with Tabiana in the market that
afternoon committed any act of aggression, assault, or resistance upon or to the
policemen who went there in search of Tabiana; that Tabiana had himself
accompanied by Apolonio Cajilig on the way from the market and, besides, sent
for Bonifacio Alutaya in order to use them as his bondsmen and thus obtain his
provisional liberty upon presenting himself in the municipal building that
evening where he expected to find the justice of the peace, that not finding the
latter there, he went to his house with the said Apolonio Cajilig, where the
justice of the peace, his brother-in-law, was living, and that once there, in
the presence also of Apolonio Cajilig and Bonifacio Alutaya, he presented these
two men as his bondsmen; that the justice of the peace accepted them as such and
fixed the amount of the bail at “P25 on account of the offense being a mere
misdemeanor; that the justice of the peace so informed the policemen and ordered
them to withdraw because the defendant was at liberty under bail; that, as the
policemen demurred, the justice of the peace, as he testified at the trial, told
them to return that same evening and he would issue an order in writing; that
the policemen left and did not return until the following morning; that then the
justice of the peace handed them a communication for the chief of police in
which it was stated that the defendant Tabiana was released under bail; that
later that same morning, the justice of the peace and Tabiana went to the
municipal building, followed by the policemen, and then and there the bail bond
was made out and signed by the bondsmen, thus setting Tabiana at liberty; and
that upon the trial of Tabiana under the complaint filed bv Juan Capalla, this
defendant was acquitted by the justice of the peace of Tigbauan, who tried the
case because the defendant Canillas, justice of the peace of Leon, was inhibited
by reason of being Tabiana’s brother-in-law.

It cannot be denied that if Gelasio Tabiana was not taken to the municipal
building or to the police station that evening by the policemen who went to his
house, there must have been some reason that prevented it. As it cannot be
deemed proven, as aforesaid, that the reason just alluded to was resistance on
Tabiana’s part—with the cooperation of his brother-in-law, the justice of the
peace Canillas—to following the policemen, the only reasonable explanation that
can be given is that, through the acceptance by the justice of the peace of the
verbal security of P25 offered by the defendant Tabiana and given by Apolonio
Cajilig and Bonifacio Alutaya, Tabiana was allowed provisional liberty until the
following day when such verbal security was to be formalized in writing, and
these facts— from the testimony given both by the justice of the peace and by
Tabiana and his witnesses, among them, one of the bondsmen themselves—appear to
be corroborated by the fact of Tabiana’s having gone in company with the justice
of the peace, his brother-in-law, on the following morning to the municipal
building and there having duly given the required bail, whereby he was
temporarily released. It is true that that same morning, according to the
testimony of the policeman Emiliano Callado, corroborated by his chief, Vicente
Gison, five policemen with Callado, all armed with revolvers and sabers and
acting under the orders of the chief of police, again stationed themselves
around the house in which Tabiana and Canillas were living, and there, as
Callado also stated, stood guard until Tabiana came out, when the policemen
followed him and the justice of the peace as they went to the municipal building
to give bail. But these very facts, in conjunction with the one which the
prosecution apparently tried to prove, to wit, that the previous evening there
took place between the defendants and these three policemen the occurrences
related by the latter, can also serve as proof of the fact that the chief of
police, Vicente Gison, wished to make a show of his authority and power by
annoying Tabiana and humiliating him, for, as it may easily be understood—as
Tabiana was living in the same house with the justice of the peace, who
prevented the arrest of Tabiana that evening—there was no need for five armed
policemen to go to watch Tabiana’s house and conduct him, as if he were a
dangerous criminal, to the municipal building, notwithstanding that he was
accompanied by the justice of the peace himself. This— in connection with the
facts already stated concerning the resentment which the chief of police must
have harbored against Tabiana, and, further, in connection with the very
significative detail that the proceedings were instituted and prosecuted solely
against Tabiana and Canillas, notwithstanding that, according to the testimony
of these very same policemen, Apolonio Cajilig, Damian Calope, Maximo Asebuque,
and Domingo Callado also assaulted and attacked said policemen, the last-named
even going so far as to lay hand on his bolo and threaten the policeman Callado
when he tried to arrest Tabiana, according,to this policeman’s testimony all the
said five men just above named thus cooperating in the execution of the
crime—brings out in bold relief the main features of this prosecution.

If the defendants ought to be acquitted for lack of proof of the acts which,
as constituting a crime, were charged against them in the complaint, the
acquittal of one of them, to wit, the justice of the peace Julian Canillas,
independently of that of his codefendant, is in all respects proper, because,
even though he may have performed those acts, he could not be considered guilty
of, and consequently convicted for, the offense of assault upon the agents of
the authorities, nor of that of resistance and serious disobedience to such
agents.

In fact, said justice of the peace, in the exercise of his authority as such
and by virtue of the complaint presented against Tabiana by Juan Capalla for the
commission of a misdemeanor against property, issued against Tabiana the warrant
of arrest carried by the policeman Callado and his companion Cabilitasan, and,
in the evening of the same day when the warrant was issued, upon Tabiana’s
applying to said justice of the peace and while these two, the latter and
Tabiana, were in their own house, two bondsmen appeared to obtain Tabiana’s
provisional liberty for that night and until the bail-bond should be formalized
in writing in the municipal building on the following day. The justice of the
peace accepted the bail offered, fixed the amount at P25, and ordered the
policemen to withdraw, for, as the justice of the peace himself said in his
testimony, he was convinced that he was empowered provisionally to release the
defendant Tabiana under the bail given by these bondsmen, and therefore
exercised such authority. The justice also testified that he told the policemen
to go to the municipal building because the defendant was released under
bail.

The foregoing facts are proven, not only by the testimony of the justice of
the peace himself and his codefendant Tabiana, but also by that of the bondsman
Apolonio Cajilig and the three witnesses Maximo Asebuque, Damaso Cambronero, and
Lucas Cabaran, present on that occasion, Asebuque, who went in search of the
other bondsman Bonifacio Alutaya, being one of them—all of whom witnessed
Tabiana’s offer to give bail, and the acceptance of that offer by the justice of
the peace. These facts were not refuted by the prosecution, notwithstanding that
it cross-examined the policeman Callado; on the contrary, it appears from
Callado’s own testimony on direct examination, that, in the very store of the
house of Tabiana and the justice of the peace, that night when the policemen
went there, as they stated, to take the warrant of arrest from Tabiana and take
him to the station, Francisco Canillas and Meliton Canillas, who were also
there, offered to give bail for Tabiana, even though it were P1,000 in cash, and
stated that for this purpose they had brought the land-tax receipts. The same
disposition was also manifested by those who accompanied the defendant Tabiana
from the market to the municipal building, among whom were Apolonio Cajilig and
Damaso Asebuque, the latter being the one who went in search of Bonifacio
Alutaya to bring him to the house of the justice of the peace, to which the
defendant Tabiana went, together with his companions, because he had not found
either the justice of the peace, the municipal president, or the chief of police
in the municipal building.

Viada, in his Commentaries on the Penal Code (Vol. II, 4 ed., p. 346), in
discussing article 278 of the Penal Code of Spain (No. 265 of that of the
Philippines) which punishes with the maximum of the respective penalty and also
with the penalty of temporary, absolute disqualification, any person who, being
vested with authority, commits any of the crimes specified in the three chapters
preceding said article, among which crimes are included those relative to
assault upon the authorities and their agents, and of resistance and serious
disobedience thereto, says:

“We do not believe there can be assault or disobedience
upon or to one authority by another when they both contend in the exercise
of their respective duties. If in such a case, one of them abuses, defames,
insults, or outrages the other, the offense of abuse, or private
defamation, or that of lesiones, if the outrage reaches that point,
would be committed, but not the crime of disobedience, nor that of assault,
which involves the exercise of authority by the offended person and
the lack of this circumstance on the part of the offended party. It would
be otherwise if the person vested with authority, but not acting in the
performance of his duty, should abuse, defame, or outrage the person exercising
the private duties of his office; in this case, there actually being
disobedience or assault, the special aggravation defined in this
article would be applicable.”

In a case where a dispute or quarrel arose in the street between several
persons, the municipal judge, accompanied by a constable, appeared on the scene
to pacify the disputants. The alcalde also intervened and pushed aside
the judge, telling him that he, the judge, was nothing there, that in the street
he, the alcalde, alone commanded, with other unbecoming and threatening
expressions which caused the judge to withdraw. The court of Soria, Spain, held
that the facts constituted the offense of assault upon a public official and
sentenced the defendant to the corresponding penalty in its maximum degree,
taking into account for this purpose the circumstance of the offender being
vested with authority. An appeal from that judgment was taken by the fiscal on
the ground of violation of law, whereupon the supreme court, in its decision of
November 4, 1890, sustained the appeal on the following grounds:

“That, in offenses of assault as in those of disobedience, the legislator has
penalized disobedience to the authorities according to the nature and the
greater or lesser violence employed in the act, whoever be the person who
commits it and whatever be his capacity. Such capacity may give rise to greater
liability, pursuant to the provisions of article 278 of the Code [265 of that of
the Philippines].

That such special note of the offenses mentioned excludes the legal
possibility of including among them either the outrage that a superior may
commit upon an inferior in the course of their relations, even when both of them
are public officials, or the abuses, of whatever nature they may be, which one
authority commits against another in cases of actual conflict of jurisdiction,
inasmuch as, in such cases, there is properly no disobedience against the
principle of authority, but an endeavor to enforce the authority which each of
the disputants represents; therefore, even though it is evident that all
authorities owe each other mutual respect, and that the violence which they
commit between themselves on the occasion of such conflicts might perhaps
require a special correction they do not, for the reasons stated, fall within
the present conception of the offenses of assault and disobedience, and can only
be punished, under the Code, according to their nature.

“That the fact that an alcalde, in his character as such and on the
occasion of the exercise of his powers, forcibly prevents a municipal judge from
exercising his own, evidently constitutes the coercion mentioned in article 510
of the Code.”

In another case, a dispute having arisen in the yard of a penal establishment
between a prisoner and a guard on duty, as the latter made a motion as if he
would draw a weapon, another guard, also on duty, intervened, held the first
guard fast and, assisted by several others, caused him to withdraw. The latter
thereupon became angry, drew a knife and inflicted upon the guard who intervened
an incised wound which was cured in seven days, leaving no deformity nor
impediment to labor. The criminal court of Tarragona, Spain, classified the
affair as an armed assault against an agent of the authorities, and convicted
the defendant of said crime. The defendant, however, appealed from this judgment
on the ground of violation of law, and the supreme court of Spain in its
decision of January 9, 1890, sustained the appeal on the following grounds:

“That the dispute between two guards of a penal establishment, on the
occasion of which one of them inflicted a slight wound upon the other, bears
none of the features properly appertaining to the crime of assault, if the
quarrel was really of a private nature, because it did not affect the service at
the moment it arose, and, on the other hand, it cannot be said that the
principle of authority was violated or impaired as a consequence of the
aggression, for the reason that both disputants were vested with the same
official character.”

It is unquestionable that if the justice of the peace Julian Canillas struck
the policeman Callado a blow on the back while the latter and his companions
were insisting upon taking Tabiana away with them under arrest, and if he made
remarks which might be considered offensive to them, such an outrage was
committed by a superior, the justice of the peace, upon an inferior, the
policeman, in the course of their official relations and in the performance of
official duties by the justice of the peace, or, better said, within the very
performance of such duties, for, the policeman Callado being charged with
serving upon Tabiana the warrant of arrest issued by the justice of the peace
Canillas, this latter—under the power and authority vested in him, in ordering
said policeman and his companions to withdraw, and in telling them that Tabiana
was released under bail—set aside, or, at least, suspended said warrant of
arrest, he being the only person who could take such action, the justice or
legality of which it was not incumbent upon the policemen to dispute, but, on
the contrary, should have been immediately acquiesced in by them.

Therefore, in conformity with the legal doctrine laid down in the above-cited
decisions, there not having been any act of disobedience against the
authorities, and as it cannot be said that the principle of authority was
violated or impaired in consequence of the blow given by the justice of the
peace to the policeman Callado, or in consequence of the words or phrases
attributed to said justice of the peace with respect to the policemen herein
concerned, these acts do not constitute the offense of assault upon the agents
of the authorities, nor that of resistance and grave disobedience to the same.
Consequently, the defendant Canillas should not be convicted of either of these
offenses.

---

DISSENTING OPINION

MALCOLM, J., dissenting:

In addition to the analysis of the facts by Justice Araullo, I also dissent
because I am convinced that those provisions of the Penal Code dealing with
assaults upon persons in authority are no longer in force. To elucidate—

Title III of Book II of the Penal Code concerns crimes against public order.
Chapter I is entitled “Rebellion.” It contains such provisions as these:

“The crime of rebellion is committed by any person or persons who shall rise
publicly and in open hostility to the Government for any of the following
purposes:

“1. To proclaim the independence of any part of the territory known as the
Philippine Islands.

“2. To dethrone the King, depose the Regent, or overthrow the
Regency of the Kingdom, or deprive the King or Regent of his personal
liberty or compel him to do something against his will.” (First article of
chapter.)

Surely this chapter is now a nullity. Chapter II is entitled “Sedition.” It
has been superseded by Act No. 292 of the Philippine Commission. Chapter III
dealing with provisions common to the two next preceding chapters falls with the
chapters on which dependent. Then follow Chapter IV, assault upon persons in
authority and their agents, resistance and disobedience thereto, and Chapter V,
contempts, insults, injurias, and threats against persons in authority,
and insults, injurias, and threats against their agents and other
public officers. These are the two chapters which I claim are no longer in
effect.

Notice some of the provisions of these chapters. Article 249, No. 1, reads:
“The offense of assault (atentado) is committed by: 1. Persons who,
without a public uprising, shall employ force or intimidation for the attainment
of any of the purposes enumerated in defining the crimes of rebellion and
sedition.”—That is, rebellion and sedition against Spain. No. 2 of
the same article reads: “Any person who shall attack, employ force against, or
seriously resist or intimidate, any person in authority, or the agents
of such person, while engaged in the performance of official duties, or by
reason of such performance.”—That is, any person in authority under the
Government of Spain. Passing on to the next chapter,’ article 253, No.
1, reads: “The offense of contempt is committed by: 1. Anyone who, while a
Minister of the Crown or any person in authority is engaged in the
performance of official duties, or by reason of such performance, shall by word
or deed defame (calumniar), abuse (injuriar), insult, or
threaten such minister or person in his presence or in any writing addressed to
him.”—That is, contempt of a Minister of the Crown of the Monarchy of
Spain. For these offenses one can be punished with prision
correccional or prision mayor—that is, with as much as six years
and one day imprisonment. Offenses which in a democracy are either taken as a
joke or pass with a reprimand, or are penalized with a small fine, or a few days
imprisonment, are in a monarchy treated as “lese majeste” and solemnly and
severely punished.

Again, it is pertinent to ask, Who were the persons in authority for
resistance and disobedience to whom such grave penalties were to be meted out?
These persons included the Governor-General, who was the personal representative
of the Spanish Crown in the Philippines, and who exercised almost regal power;
alcaldes mayores, who for a long period of time combined both executive
and judicial functions; civil governors, invariably Spaniards, who were the
direct representatives of the Governor-General; and the guardia civil
of unsavory reputation. These provisions of the penal law were moreover
formulated by Spain, for the good of Spain, and merely through the will of Spain
were they extended to the Philippines.

It is a general principle of the public law that on acquisition of territory
the previous political relations of the ceded region are totally abrogated. The
political law pertaining to the prerogatives of the former Government
necessarily ceases.

“It cannot be admitted that the King of Spain could, by treaty or otherwise,
impart to the United States any of his royal prerogatives; and much less can it
be admitted that they have capacity to receive or power to exercise them. Every
nation acquiring territory, by treaty or otherwise, must hold it subject to the
Constitution and laws of its own government and not according to those of the
government ceding it.” (Pollard vs. Hagan [1845], 3 How., 212.)

So likewise it cannot admit of doubt that those provisions of the Spanish
Penal Code concerning assaults upon persons in authority were in the nature of
political law enacted and promulgated by a monarchy and were thus entirely
incompatible with democratic institutions. On every occasion when questions of
this nature have been presented to the Supreme Court of these Islands, laws and
parts of laws of a similar character have been held not to be in force. Thus in
The United States vs. Sweet ([1901], 1 Phil., 18), the Supreme Court
found the Spanish Military Code no longer operative in the Philippines,
presumably because a political law. In The United States vs. Balcorta
([1913], 25 Phil, 273), the Supreme Court held those articles of the Penal Code
defining special crimes against the state religion as necessarily not now in
effect in the Philippines.

Enough has been said to demonstrate that Chapters IV and V, title 3, book 2,
of the Penal Code are no longer in force in the Philippines. If necessary, many
additional arguments and authorities could be adduced and included in support of
this conclusion. As the Philippine Legislature is even now considering a modern
Correctional Code to supplant the old Penal Code, such an extended discussion
would not prove profitable, and would merely serve to pile up arguments on a
point which to me appears not to be in doubt.