VALENTIN ILO, ET AL., PETITIONERS, VS. COURT OF APPEALS, ET AL., RESPONDENTS.

Valentin Ilo, et al., were charged before the Court of First Instance
of Camarines Sur with the crime of arson where, after trial, Valentin
Ilo and Silvestre Buela were found guilty under Article 321, paragraph
5, of the Revised Penal Code and sentenced each to an indeterminate
penalty of from 4 months and 1 day to 4 years 2 months and 1 day of prision correccional,
to indemnify jointly and severally the offended party in the sum of
P600.00, and to pay their respective share of the costs. The rest of
the accused were acquitted.

Ilo and Buela appealed to the
Court of Appeals. The latter court, while it found appellants guilty,
held that the crime charged comes under Article 321, paragraph 1, of
the Revised Penal Code, and not under the same article, paragraph 5,
and as a consequence, it modified the penalty imposed upon them. It
accordingly sentenced each of appellants to suffer an indeterminate
penalty of not less than 6 years and 1 day of prision mayor nor more than 16 years and 1 day of reclusion temporal, affirming the decision of the trial court in all other respects. Appellants interposed the present petition for review.

The facts as found by the Court of Appeals are:

“Zosimo
Taghoy and his family lived in their house located in sitio Ligua,
barrio Salvacion, Municipality of Tinambac, Camarines Sur. It appears
that prior to December 4, 1950 Valentin Ilo had quarrelled with one
Restituto Bona while they were in the aforesaid house of Zosimo. As a
result thereof Restituto filed a criminal charge against Valentin in
connection with which the latter had warned Zosimo not to testify in
favor of his accuser. This notwithstanding, however, Zosimo testified
before Sgt. Rivera when the latter investigated the incident.

“The
prosecution evidence shows that very early in the morning of December
4, 1950, Zosimo left for Tinambac to buy fish. Between 11 and 12,
o’clock that morning, as Bruna Absin, a 60-year old woman who lived in
the house aforesaid together with her granddaughter, Salud Piania and
the latter’s three children, the eldest of whom was only three years
old, she heard the voices of some people coming towards the place. She
went down to see who they were. The group was composed of eight persons
headed by Valentin Ilo. Salud Piania also got up and looked through the
window from where she saw them coming. All of them were well-known to
both Bruna and Salud because they had been their neighbors in the same
barrio for more than ten years.

“Upon their arrival
Silvestre Buela poured petroleum from a bottle into the awning of the
house, while Valentin Ilo applied a lighted match to the same place
after the petroleum had been poured upon it. Their six companions had
by then surrounded the place.

“When Bruna asked Valentin
why they were burning the house, the latter replied sarcastically;
‘What setting fire are you talking about?’ Then, as the fire begun to
spread, Salud Piania took hold of her youngest child and ran out of the
house through the kitchen door while her grandmother took care of the
other two children and hurriedly lead them out of the burning house
through the same door, and all of them sought refuge at the house of
Salud’s mother-in-law located at about one kilometer away.

“The
house of the Taghoys was burned to the ground together with all its
contents consisting of furniture, clothing, house utensils, farm
implements, two sacks of corn, and six sacks of palay, with a total
estimated value of more than P1,000.00. The house itself, in the
opinion of the trial court, was worth P600.00.

“As stated
at the beginning, the evidence shows that Zosimo Taghoy had gone to the
poblacion of Tinambac very early that same morning to buy fish. While
he was there walking with Restituto Bona towards the municipal
building, they met Valentin Ilo, Alfredo Cañizo and Pacifico Carullo.
Valentin threw a stone at them hitting Restituto with it on the
forehead. Zosimo and Restituto, unwilling to get into further trouble
took to their heels, pursued by Valentin and his two companions, but
they succeeded in evading them by seeking refuge in the house of Maximo
Piania, Zosimo’s father-in-law.

“Due to the incident above
described and fearful that Valentin and his companions might do harm to
the members of his family, Zosimo requested the chief of police of
Tinambac, to have a policeman accompany his brother-in-law, Jaime
Piania, to his house at sitio Ligua to fetch his wife and children.
This the chief of police did, but when Jaime and municipal policeman
named Gualberto Cantos reached Ligua, they found Zosimo’s house reduced
to ashes. Later on they went to the house of Zosimo’s mother where they
found his wife and children.”

The trial
court found appellants guilty of arson under Article 321, paragraph 5,
of the Revised Penal Code because the information does not allege that
the house burned was an inhabited one or that the accused knew it to be
inhabited. And in expressing the opinion that the crime comes under
Article 321, paragraph 5, it surmised that, while the information does
not state in so many words that the building burned was used as a
dwelling, it however alleges that it was reduced to ashes together with
all the furniture, utensils, clothing and palay deposited therein, from
which it may be inferred that the house was inhabited when it was set
on fire.

The Court of Appeals, however, is of a different
opinion. It expressed the view that the defendants are guilty of the
offense under paragraph 1 of the same article, which is penalized with reclusion temporal to reclusion perpetua, or from 12 years and 1 day to reclusion perpetua,
because the information alleges that they “set fire to the house of one
Zosimo Taghoy”, and the evidence shows that when they burned the house
they saw two occupants therein in the persons of Bruna Absin and Salud
Piania, from which, according to said court, it may be deduced that
they knew that the house was then inhabited and such knowledge is an
essential ingredient of this form of arson.

Counsel for
appellants, on the other hand, disagrees with both the trial court and
the Court of Appeals, for he contends that the information does not
contain any allegation that the building burned is used as a dwelling
and is located in an uninhabited place to make it come under Article
321, paragraph 5, of the Revised Penal Code, nor does it allege that
the accused set fire to the house “knowing it to be occupied at the
time by one or more persons”, even if it does allege that the house was
that of Zosimo Taghoy and it was burned together with the furniture,
utensils, clothing and palay deposited therein. He contends that such
avernment, as well as the proof adduced that the accused saw two
occupants of the house at the time of the burning cannot convert the
crime charged into a more serious one, or one under paragraph 1 of the
same article.

We find merit in this contention. In one case,
where the defendant was accused of arson upon the allegation that he
set fire to the dwelling house of one Rosa Dani which was inhabited by
her, it was held that it was error to find him guilty under Article
321, paragraph 1, because there is no allegation that he knew
that the house was inhabited. This Court said: “Knowledge on the part
of the accused that the building set fire to is occupied, is an
essential element of the form of arson defined in Article 549 of the
Penal Code, (now Article 321, paragraph 1) and the information must
contain allegations to that effect that the accused had such knowledge
at the time of the commission of the crime in order to sustain a
conviction under the article” (People vs. Macalma, 44 Phil.,
170). On the other hand, it is trite to say that the guilt of
appellants and their subsequent conviction cannot rest on a mere
presumption, but upon clear proof, while a substantial defect in the
information cannot be cured by evidence, for that would jeopardize
their right to be informed of the true nature of the offense they are
charged.

We, therefore, agree with counsel that the offense
of which appellants may be convicted is that defined and penalized in
Article 322, paragraph 3, of the Revised Penal Code which governs cases
of arson not included in Article 321 and imposes the penalty of prision correccional in its minimum and medium periods if the damage caused is over P200.00 but does not exceed P1,000.00.

Considering that the crime was committed with the aggravating
circumstance of dwelling, not offset by any mitigating circumstance,
that penalty should be imposed in the maximum period, or from 2 years
11 months and 11 days to 4 years and 2 months. And applying the
Indeterminate Sentence Law, appellants should be sentenced to suffer an
indeterminate penalty of from 4 months and 1 day of arresto mayor to 4 years and 2 months of prision correccional.

Wherefore, with the above modification, the decision appealed from is
affirmed in all other respects, without pronouncement as to costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David, JJ., concur.