PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MARIANO OANDASAN (BULALA SUR, APARRI, CAGAYAN), DEFENDANT-APPELLANT.

Defendant’s brief on appeal underscores
one claimed error:  the penalty imposed
is incorrect.^[1]

 The criminal complaint was
for homicide.  The charge was lodged with
the Municipal Court of Flora, Mountain
Province.  At the preliminary investigation in that
court, the accused was arraigned, pleaded
“not guilty” to the charge.

The case was thereafter elevated to the Court of First Instance of Cagayan
for trial on the merits.  There, a formal
indictment for homicide was
filed by the prosecuting attorney.  Upon
arraignment, the accused – this time – pleaded guilty.  Before sentence, he pre­sented evidence to prove the mitigating circumstances of
incomplete self-defense and voluntary surrender, aside from the plea of guilty.

Came the trial judge’s decision of September 27, 1967. 
He ignored the appellant’s plea of guilty as a mitigating circumstance
“in view of his former plea of not guilty before the municipal court of Flora, Mt.
Province”.  He did not take into account incomplete
self-defense as a privileged mitigating circumstance.  He merely
accorded defendant the benefits of provocation together with voluntary
surrender, as ordinary mitigating circumstances lie thus sentence defendant for the crime of
homicide defined and penalized under Article 249 of the Revised Penal Code to an indeterminate penalty of two
(2) years, four (4) months and one (1) day of prision correc­cional
as minimum, to eight (8) years of prision mayor as maximum, with the accessories of the
law.  He further directed defendant to
indemnify the heirs of the deceased in the sum of P6,000.00 without subsidiary
imprisonment in case of insolvency, and to pay costs.

1.  The accused argues that
his plea of guilty should be con­sidered in his favor.  In this
he receives an assist from the Solicitor
General.

It is to be conceded right
at the outset that if an accused, charged with an offense cognizable by the municipal court, pleads not guilty therein, and on
appeal to the court of first instance, changes his plea to that of guilty upon rearraignment, he should not be entitled to the mitigating circumstance of confession of
guilt.^[2]
The philosophy behind this rule is obvious. 
For, the spontaneous willingness of the accused to admit the commission
of the offense charged, which is
rewarded by the mitigating circumstance, is
absent.^[3]
Indeed, if the rule were otherwise, an
accused, who naturally nourishes the hope of acquittal, could deliberately plead not guilty in the municipal
court, and upon conviction and on appeal to the court of first instance, plead
guilty just so he can avail himself of the benefit of a mitigating
circumstance.^[4]
This cannot be countenanced.  The accused
should not be allowed to speculate.

One feature of this case, however, takes it out of the reach of
the principle earlier adverted to.  The
municipal court before which the accused pleaded not guilty was only conducting
a prelim­inary investigation.  It had no
jurisdiction over the crime of homicide; it could not have rendered judgment on
the plea.  It must elevate the case to
the court of first instance – the court of competent jurisdiction – even if the
plea be that of guilty.  For purposes of
applying the mitigating circumstance of confession of guilt, the plea of not
guilty upon arraignment at preliminary investigation in the municipal court is
no plea at all.

Upon the other hand, we cannot just sweep away defendant’s right
to a preliminary investigation.  It is a
statutory grant.  It cannot be
withheld.  To do so would be to transgress
constitutional due process.  Defendant
herein was thus entitled to know if probable cause existed to require elevation
of his case to the court of first instance. 
Because, absent a probable cause, the case against him must be
dismissed.  His plea of not guilty before
the municipal court therefore may not be taken against him.

Thus it is, that the proper forum where a plea in mitigation may
be presented is the court which has jurisdiction to take cognizance of the
case.  Homicide, we repeat, is the
charge.  The court having original jurisdiction
is the court of first instance. 
Defendant, accord­ingly, properly entered his plea of guilty therein –
with right to claim it as a mitigating
circumstance.

By statute [Article 13(7), Revised Penal Code], a circumstance
which mitigates penal liability is that the accused “had voluntarily
confessed his guilt before the court prior to the presentation of the evidence
for the prosecution”.  Otherwise,
such voluntary confession should be ruled out in fixing the sentence.^[5]

Here, the plea of guilty was
made upon arraignment, certainly before trial was conducted.  The
mitigating circumstance of voluntary confession of guilt before the court of
first instance should be counted in his favor.

2.  The other argument defendant presses upon us
is that the trial court should have appreciated the privileged mitigating
circum­stance of incomplete self-defense.

The concept of justice thus espoused finds full support in the
trial court’s decision itself, viz:

“The accused testified that he saw the deceased Quirino Duldulao chasing his son. 
Not contented with that and not being able to catch the latter the said victim Quirino Duldulao threw his wooden
club at the son of the accused, but the accused’s son
was not hit.  The accused approached Quirino Duldulao and asked him
why he was chasing the son and why he threw the club.

Upon being asked, the deceased Quirino Dul­dulao instead of answering the accused Mariano Oandasan, clubbed the accused Mariano Oandasan,
hitting him on the left shoulder.  The
accused Mariano Oandasan stepped backward and remem­bering
that he had a sharp-pointed knife, he drew it. 
Again the deceased struck the accused on the head with the club, so the
accused stabbed Quirino Duldulao
on the front.  The deceased sustained two
wounds, one at the epigastric region and the other on
the right hand”.^[6]

Once again, the Solicitor General joins the accused in ascribing
error to the trial court when it declared that the facts just recited merely
show provocation by the deceased, a mitigating circumstance under Article
13(4), Revised Penal Code.  They say that those facts also clearly
demonstrate an act of unlawful aggression by the deceased as well as lack of sufficient provocation on
the part of the accused.  These two
circumstances, they submit, carve out a good case of incomplete self-defense.^[7]

Their submission induces approbation.  It is borne out by the facts found
below.  The accused saw the deceased Quirino Duldulao chasing the former’s son.  When
the accused approached Duldulao and asked him why he
(Duldulao) was doing so, Duldulao
hit the accused with a wooden club on the left shoulder.  The accused drew a sharp-pointed knife he had
with him.  Then, the deceased clubbed the
accused on the head, which prompted the latter to stab Duldulao
on the front.  As we see it, the only
element absent to exempt the accused totally from criminal liability under
Article 11(1), Revised Penal Code, is “[r]easonable
necessity of the means employed to prevent or repel” the unlawful
aggression.

The privileged mitigating circumstance of incomplete self-defense
is here present.

3.  We now come to assess the
penalty that should be imposed.

By the facts, the accused deserves the benefit of Article 69 of
the Revised Penal Code.  It
provides:  “A penalty lower by one or two degrees than that prescribed
by law shall be imposed if the deed is not wholly excusable by reason of the
lack of some of the conditions required to justify the same or to exempt from
criminal liability in the several cases mentioned in articles 11 and 12, pro­vided
that the majority of such conditions be present.  The courts shall impose the penalty in the
period which may be deemed proper, in view of the number and nature of the
conditions of exemption present or lacking”.

And then, in view of the plea of guilty and voluntary surrender
and the absence of any aggravating circumstance, the accused is also entitled,
as Article 64(5) of the same code commands, to a “penalty next lower to
that prescribed by law, in the period that it [the court] may deem applicable,
according to the number and nature of such circumstances”.

From all this, the defendant prays, and the Solicitor General
recommends, a two-degree reduction of penalty. 
This is well-taken.

In the past, this Court has found occasion in a number of instances to
lower the penalty by one degree^[8]
or two degrees^[9]
because of incomplete self-defense (with the concurrence of unlawful aggression and lack
of sufficient provocation, and absent a reasonable necessity of the means employed), but
without having to compute into the penalty other privileged mitigating
circumstances.

What about incomplete self-defense coupled with a privileged mitigating circumstance,
as in this case?

In
People vs. Lucero, 49 Phil. 160, 162, incomplete
self-defense was accompanied by provocation, a circumstance analogous to arrebato y obcecacion
and youthfulness of the accused (19 years of age at the time of the
trial).  This Court reduced the penalty
for homicide by two degrees.  People
vs. Jaurigue, 76 Phil. 174, 182-183,
was a case of incomplete defense of
honor attended by four generic mitigating circumstances.  The penalty for homicide was likewise lowered
by two degrees.  In People vs.
Maula (unreported), L-7191, October 18, 1954, this Court
appreciated incomplete self-defense, concurred in by minority of the accused as a
privileged mitigating circumstance and by voluntary surrender.  The penalty of the accused for homicide was
also brought down by two degrees.

The standard set down in the cases just discussed gives us the proper
course to pursue:  A two-degree reduction
of penalty-one degree, by Article 69, and another degree, by Article
64(5).  It is the most reasonable and
just for the accused Mariano Oandasan.

4. The crime of homicide is penalized by Article 249 of the
Revised Penal Code.  The penalty therein
prescribed is reclusion temporal. 
Two degrees lower is prision
correctional, the penalty imposable by law in the period that the courts
may deem applicable, “according
to the number and nature” of the mitigating circumstances.  With the mitigating circumstances attendant,
we feel that Oandasan’s penalty should be fixed
within the medium period at two (2) years, four (4) months, and one (1) day.

Calling the Indeterminate
Sentence Law into operation – whose
applicability is based “upon the penalty actually imposed in accordance
with law and not upon that which may be imposed in the discretion of the
court,”^[10]
– the minimum of the penalty then should be within the range of the
penalty next lower in degree,^[11]
i.e., arresto mayor, which we fix at
four (4) months.

5. We cannot close this decision without putting in a good word
for defendant’s lawyer, Atty. Antonio Ma. Azurin.  Appointed counsel de oficio
below, he volunteered to prosecute defendant’s appeal by seeking a new
appointment as such counsel on the appellate level.  Conscientious
and diligent in championing defendant’s rights below and on appeal, his
actuations present an exemplary case of devotion to duty.  They are those of a worthy member of the Bar.

Upon the record as it stands, the lower court judgment rendered
against the accused Mariano Oandasan is hereby
modified; and he is hereby sentenced to
an indeterminate penalty of four (4) months of arresto
mayor as minimum, to two (2) years,
four (4) months and one (1) day of prision correccional as maximum, with the accessories of the
law.  In all other respects, the decision
below is affirmed.

No costs in this instance.

 SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Castro, Angeles, Fernando, and Capistrano, JJ., concur.

Dizon, J., did not take part.

Zaldivar, J., is on leave.

^[1]
In Criminal Case 171 (Apayao), Court of First
Instance of Cagayan, entitled “People of the Philippines,
Plaintiff, versus Mariano Oandasan,
Accused”.

^[2]
Aquino, The Revised Penal Code, 1961 ed., Vol. I, p. 264, citing cases.

^[3]
People vs. Fortuno, 73 Phil. 597, 598.

^[4]
Id., Aquino,
op. cit.

^[5]
People vs. Coronel, L-19091, June
30, 1966; People vs. Buco, L-19831, September 5, 1967, citing
People vs. Quijano, 223, 225, citing cases.

^[6]
Decision, pp. 1-2; Rollo, pp. 10-11.

^[7]
Article 13(1) in connection with Article 11(1), Revised Penal Code.

^[8]
U.S. vs. De Castro, 2 Phil. 67, 70, without any other modifying
circumstance; U.S. vs. Mendoza, 2 Phil. 109, 110, without any other modifying
circumstance; U.S. vs. Pasca, 28 Phil. 222,
228, with one
other mitigating circumstance; People vs. Almendralejo,
48 Phil. 268, 276, without any other modifying circumstance. See also:  U.S.
vs. McCray, 2 Phil. 545, 548 (where the element absent is lack of
sufficient provocation), also without modifying circumstances.

^[9]
U.S. vs. Dimitillo, 7 Phil. 475, 476, without
any other modifying circumstance; U.S. vs. Apego,
23 Phil. 391, 397, with one
other mitigating circumstance; U.S. vs. Rivera, 41 Phil. 472, 474, with one other
mitigating circumstance; People vs. Dorado, 43 Phil. 240, 245, without
any other modifying circumstance; People vs. Mercado, 43 Phil. 950, 952,
without any other modifying circumstance.

^[10]
People vs. Dimalanta, 92 Phil. 239, 242.

^[11]
People vs. Ducosin, 59 Phil. 109, 117; People vs.
Gonzales, 73 Phil. 549, 552; People vs. Yco
(unreported), L-6545, July 27 1954, 95 Phil. 951-952, citing People vs.
Alba (unreported), March 31,
1936, 63 Phil. 1058-1059.