G.R. No. L-2709. June 30, 1950
UY CHIN HUA, PETITIONER VS. RAFAEL DINGLASAN, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENT.
OZAETA, J.:
try an offense penalized with destierro or banishment—the municipal
court or the court of first instance?
The petitioner was charged in the Court of First Instance of Manila with
attempted bribery by offering the sum of P6 to patrolmen A. Caudal and L. de los
Santos in consideration of their refraining from arresting him for a violation
of the Price Tag Law (Republic Act No. 71). which offer the said police officers
rejected, and placed the offeror under arrest.
Upon denial of his motion to quash for lack of jurisdiction, the petitioner
filed the present petition for certiorari (which we interpret to mean
prohibition), praying that the respondent judge be ordered to refrain from
further proceeding on the ground that he has no jurisdiction to take cognizance
of the case.
The consummated crime of bribery or corruption of public officials is
penalized by article 212, in relation to the third paragraph of article 210 of
the Revised Penal Code, with arresto mayor in its medium and maximum
periods. The penalty for the attempted crime is two degrees lower, which is
destierro in its minimum and medium periods. That means that the
culprit shall be banished from his present residence (not imprisoned) for a
period of not less than 6 months and 1 day and not more than 4 years and 2
months.
We are unanimous in the conclusion that the court of first instance has no
jurisdiction over the offense charged and that therefore the writ of prohibition
lies. But we are not unanimous as the reasons. A minority hold that if the scale
provided by article 71 of the Revised Penal Code is to be followed, the penalty
of destierro would have to be imposed which, they claim, would produce an
absurdity because the duration of said penalty is from 6 months and 1 day to 6
years—”co-extensive with prision correccional, a penalty higher than
arresto mayor in the scale provided by article 71.” Therefore, the minority hold
that the penalty of destierro should be applied only when it is
specifically imposed and should be disregard in the scale provided in article
71. In other words, the minority think that the penalty imposable for the
offense charged is arresto menor.
A majority of the court, including the writer of this opinion, find no
justification for disregarding the scale of penalties provided in article 71 and
for not applying the penalty of destierro to the offense charged, in
accordance with article 51 in relation to the scale of penalties provided in
said article 71 of the Revised Penal Code.
To disregard the scale of penalties provided in article 71 and to apply
destierro only to crimes specifically punished with that penalty, such
as those mentioned in articles 247 and 334, would be to amend or change the law,
and the court is not empowered to do so. Our sworn duty is to apply the law and
not to tamper with it.
Destierro is not higher penalty than arresto mayor. Arresto
mayor means imprisonment or complete deprivation of liberty, whereas
destierro means banishment or only a prohibition from residing within
the radius of 25 kilometers from the actual residence of the accused for a
specified length of time. The respective severities of arresto mayor
and destierro must not be judged by the duration of each of these
penalties, but by the degree of deprivation of liberty involved. Penologists
have always considered destierro lighter than arresto mayor.
Such criterion is reflected both in the old Spanish Penal Code and in our
Revised Penal Code. In the graduated scale of article 71 the lawmaker has placed
destierro below arresto mayor. There is, therefore, no basis
in fact or in law for holding that destierro is a higher penalty that
arresto mayor and that an offense penalized with destierro
falls under the jurisdiction of the court of first instance.
The judiciary Act of 1948 (Republic Act No. 296) does not expressly confer
original jurisdiction on the court of first instance over offenses penalized
with destierro. Section 44 of said Act provides that Courts of First
Instance shall have original jurisdiction “(f) in all criminal cases in
which the penalty provided by law is imprisonment for more than six
months, or a fine of more than two hundred pesos.” And.section 87 of the same
Act provides that justices of the peace and judges of municipal courts of
chartered cities shall have original jurisdiction over “(b) all
offenses in which the penalty provided by law is imprisonment for not
more than six months 3 or a fine of not more than two hundred pesos, or both
such fine and imprisonment .”
Thus there exists a gap in the law as to which court shall have original
jurisdiction over offenses penalized with destierro or banishment. Until the
lawmaking body should fill that gap by expressly providing otherwise, the Court
must do so by reasonable interpretation of the existing law. The reasonable and
logical interpretation, in our opinion, is this: Since the legislature has
placed offenses penalized with arresto mayor under the jurisdiction of
justice of the peace and municipal courts, and since by article 71 of the
Revised Penal Code, as amended by section 3 of Commonwealth Act No. 217, it has
placed destierro below arresto mayor as a lower penalty than
the latter, in the absence of any express provision of law to the contrary it is
logical and reasonable to infer from said provisions that its intention was to
place offenses penalized with destierro also under the jurisdiction of
justice of the peace and municipal courts and not under that of Courts of First
Instance.
The writ of prohibition will be issued, without any finding as to costs.
Pablo, Bengzon, and Tuazon, JJ., concur.
MORAN, C.J.:
I concur in the result.
MONTEMAYOR, J.:
I concur in the result.
REYES, J.:
I concur in the result.
MORAN, C.J.:
I hereby certify that Mr. Justice Padilla took part in the
consideration of this case and concurred in the opinion of the majority.
PARAS, J., concurring:
The herein petitioner was charged in the Court of First Instance of Manila
with having committed on August 10, 1948, the attempted offense of corruption of
public officials in that he offered to patrolmen A. Cudal and L. de los Santos
the sum of six pesos in order that the latter might refrain from arresting the
petitioner for a violation of the Price Tag Law (Republic Act No. 71), but that
said police officers refused to be thus corrupted. The petitioner filed a motion
to quash on the ground of lack of jurisdiction, it being contended that, as the
penalty for the consummated offense of corruption of public officials provided
by article 212, in relation to the third, paragraph of article 210, of the
Revised Penal Code, is arresto mayor in its medium and maximum periods
and a fine of not less than the value of the gift and not more than three times
such value, the penalty for the attempted offense charged in the information is
only arresto menor in its minimum and medium periods, and a fine of not
more than eighteen pesos. This motion to quash having been denied, the
petitioner instituted the present petition for certiorari.
In the scale of penalties provided in article 71 of the Revised Penal Code,
as amended by Commonwealth Act No. 217, the two penalties successively lower
than arresto mayor are destierro and arresto menor.
Under article 25, destierro is classified as a correctional penalty
and, under article 27, its duration is from 6 months and 1 day to 6 years. Upon
the other hand, the duration of arresto mayor, classified also as a
correctional penalty (article 25), is from 1 month and 1 day to 6 months
(article 27). There can be no question that, pursuant to the Judiciary Act of
1948 (Republic Act No. 296), the consummated offense of corruption of public
officials, penalized with arresto mayor in its medium and maximum
periods, or from 2 months and 1 day to 6 months, comes within the original
jurisdiction of the justice of the peace or municipal court. Under article 51,
the penalty for an attempt to commit the offense of corruption of public
officials is two degrees lower than arresto mayor in its medium and
maximum periods. Said penalty—if the scale in article 71 of the Revised Penal
Code, as amended by Commonwealth Act No. 217, is to be followed to the letter—is
destierro in its minimum and medium periods, or from 6 months and 1 day
to 4 years and 2 months, with the result that an attempt would fall, pursuant
also to the Judiciary Act of 1948, under the original jurisdiction of the court
of first instance. This is the theory of counsel for respondent judge.
According to this theory, an attempted offense is penalized with a greater
penalty than the consummated offense, and is to be tried by a higher court than
that which will try the consummated offense. This absurd result could not have
been contemplated by the lawmakers in amending article 71 of the Revised Penal
Code and should accordingly be avoided.
An attempt to commit a felony is certainly lower than the consummated felony,
and this is the reason why article 51 of the Revised Penal Code specifically
provides that a penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principals in an attempt to commit
said felony. If this fundamental provision is, as it should be, given effect,
the penalty for the attempted offense of corruption of public officials, which
is a penalty lower by two degrees than arresto mayor in its medium and
maximum periods (from 2 months and 1 day to 6 months), is arresto menor
in its minimum and medium periods (from 1 day to 20 days). The penalty for said
attempted offense should not be taken from destierro, because the
duration of this penalty is from 6 months and 1 day to 6 years, and is therefore
equal to and co-extensive in duration with prision correccional, a
penalty higher than arresto mayor in the scale provided by article 71
of the Revised Penal Code, as amended by Commonwealth Act No. 217. Although
destierro may not be an “imprisonment”, it is nonetheless a
“deprivation of liberty” (People vs. Abilong, G. R. No. L-1960,
November 26, 1948[1]).
It is noteworthy that before article 71 was amended by Commonwealth Act No.
217, the scale of penalties from which a lower or higher penalty was taken, was
that provided by article 70, under which the penalty lower than arresto
mayor was arresto menor. Destierro was not included. The
obvious reason is that destierro is an exceptional penalty, prescribed
as a principal penalty only in two cases (article 247 and 334) and as an
additional penalty only in one case (article 284). The exceptional character of
destierro is recognized in the fact that although it is classified as a
correctional penalty having a duration of from 6 months and 1 day to 6 years, in
parity with prision correccional, it is placed in the scale fixed in
article 70 of the Revised Penal Code, as amended by Commonwealth Act No. 217,
below arresto menor, as regards severity and for purposes of successive
service of sentences; and in the scale provided in article 71, as amended by
Commonwealth Act No. 217, it is placed below arresto mayor. But, as
heretofore stated, if the scale in article 71 is followed literally, we shall
have the unthinkable and absurd situation that the consummated offense of
corruption of public officials is penalized with arresto mayor in its
medium and maximum periods (from 2 months and 1 day to 6 months) originally
triable in the justice of the peace or municipal court, whereas the lower
offense of attempted corruption of public officials is penalized with
destierro in its minimum and medium periods (from 6 months and 1 day to
4 years and 2 months) and originally triable in the court of first instance. To
avoid this absurdity, I am constrained to hold that the penalty of
destierro is to be considered only when it is specifically imposed and
is to be disregarded in the scale provided in article 71.
It is true that in the case of People vs. Ng Pek (G. R. No. L-1895,
decided on October 2, 1948[1]), we held
that the penalty lower by two degrees than arresto mayor in its medium
and maximum periods is destierro in its minimum and medium and maximum
periods; but in said case the point decided in the case at bar was not actually
raised and passed upon. Upon the other hand, in the case of Rivera vs. Geronimo
(43 Off. Gaz., 841[2]), decided on July 22,
1946, we ruled that the penalty lower by two degrees than prision
correccional in its minimum and medium periods is arresto menor in
its maximum period to arresto mayor in its minimum period, the penalty
of destierro having been disregarded.
Wherefore, I concur in the
result of the majority decision.
[1] 82 Phil., p. 172.
[1] 81 Phil., 562.
[2] 76 Phil., 838.