THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. NICOMEDES GUMBAN, DEFENDANT AND APPELLANT.

“The undersigned fiscal accuses Nicomedes Gumban of the crime of assault upon
agents of authority committed as follows:

“That on or about August 13, 1917, in the municipality of Jaro, Province of
Iloilo, P. I., the said accused did then and there, willfully, unlawfully, and
criminally, attack, employ force, and lay hands upon the person of Petronilo
Gumban, municipal president of the said municipality of Jaro, and therefore upon
the person of an agent of authority of the said municipality, at a time when
said Petronilo Gumban was engaged in the performance of his official duties,
giving said Petronilo Gumban a slap on the face. Committed in violation of
article 250 of the Penal Code.”

On the morning of August 13, 1917, Petronilo Gumban, municipal president of
Jaro, Iloilo, was in the barrio of Pavia of the said municipality, inspecting
the quarantine of animals. He was getting some information from a councilor,
Magdaleno Suliano, regarding the condition of the animals in his barrio, when
Gregorio Ismaiia, a tenant of Magdaleno Suliano, arrived to report the fact that
he had surprised a carabao belonging to Policarpio Gumban, destroying a planted
area belonging to the said Magdaleno Suliano, and that, having seized the
carabao, he brought the same to the police station at Pavia, which is within the
zone affected by the quarantine. Then Epifanio Gumban and the accused Nicomedes
Gumban, brothers of Policarpio Gumban, the owner of the carabao, arrived there
and protested to the president that their brother’s carabao was taken to Pavia
which is within the zone affected by the quarantine. The president, upon hearing
said protest, said that it was his opinion that Gregorio Ismana was right in
taking the carabao to the police station at Pavia. However he promised to
intervene in the matter and to telephone to the man in charge of the quarantine
to find out whether, on the following day, the said carabao could not be
withdrawn from the zone affected by the quarantine. Upon hearing this statement
of the president, the accused insulted the said president and gave him a slap on
the face which struck his left ear.

The lower court found the defendant guilty of the crime of assault upon an
agent of authority, and sentenced him to 3 years, 4 months, and 8 days of
prision correccional, to pay a fine of P600, Philippine currency, with the
corresponding subsidiary imprisonment, in case of insolvency, and to pay the
costs. From this judgment the defendant appealed.

However, the facts proved at the trial constitute the crime of assault with
the hands upon a person in authority as defined in paragraph 2 of article 249 in
connection with paragraph 3 of article 250 of the Penal Code. Article 249
says:

“The offense of assault (atentado) is committed by:

“1. * * * * * * *

“2. 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 his official duties, or by reason of such
performance.”

Article 250 says:

“”The penalty for assaults falling within the next preceding article shall be
* * * when the offense is committed under any of the following circumstances :

“1. * * * * * * *

“2 * * * * * * *

“3. When the offenders lay hands upon any person in authority.”

According to the above provisions of law, in order that the crime of assault
punishable by these articles may exist, it is sufficient that there be an
assault upon a person in authority committed by laying hands upon him. The
supreme court of Spain in a decision under date December 7, 1876, held:

“Considering that the fact of giving a slap to a person in authority should
necessarily be qualified in the sense of laying hands upon the same person and
that the court has not thus erred in applying articles 263 and 264, paragraph 3
(articles 249 and 250, paragraph 3 of the Penal Code of the Philippines) to the
defendant who gave a slap to the person of the municipal judge of Canada when
the latter was engaged in the performance of the duties pertaining to his
office, etc.”

According to the doctrine above set forth, the facts proved in this case
involve all the necessary elements that constitute the crime of assault,
inasmuch as the offended party, being a municipal president, was a person in
authority (U. S. vs. Dirain, 4 Phil. Rep., 541), and was in the
performance of hia official duties. In reaching this conclusion, we took into
account the decision rendered by this court in the case against Gelacio Tabiana
and Canillas,^[1] in which it is said that
the distinction between an assault and a resistance to agents of authority lies
largely in the amount of the force employed in each case, and that a sudden blow
given to a policeman while engaged in effecting an arrest does not constitute
that employment of force which is punishable as assault. We have also considered
the decision rendered by this court in the case against Cipriano Agustin (R. G.
No. 13083 [decided December 11, 1917, not published]) in which it was also held
that a blow upon a policeman was not an aggression amounting to an assault. It
must be remembered, however, that in these two cases the crime involved was that
of assault upon agents of authority, in which the essential element is
substantially the force employed. It is said in these two cases that any force
is not sufficient to constitute an assault, but that it is necessary to consider
the circumstances of each case to decide whether the force used is, or is not,
sufficient to constitute assault upon an agent of authority. In the present
case, the crime involved is that of assault upon a person in authority, in which
the force necessary to constitute this crime is specifically defined by the law
and consists in laying hands upon the person. In this case, it is not necessary
to ascertain what force the law requires in order to constitute an assault,
since the law itself defines concretely this force in providing that it consists
in laying hands upon the person. The law simply mentions the laying of hands,
without making any distinction as to the different cases, and it would not be
just to make that distinction when the law does not make it. It is to be noted
that the same provision of the law with regard to intimidation or resistance as
other constitutive elements of assault expressly requires that they be serious.
If the law had intended to distinguish between the case of a serious laying of
hands and that which is not serious, it would have laid down that distinction.
This seems to indicate that the distinction which the law makes in the cases of
intimidation or resistance is not intended to be applied to the case of laying
hands.

The information qualifies the crime charged as an assault upon an agent of
authority. Inasmuch as the offended party, as municipal president, is a person
in authority and not a mere agent of authority, the designation of the crime
given by the fiscal is erroneous. But, as has been decided by this court in many
cases, this mistake does not affect the information, because the qualification
which the fiscal makes is not what constitutes the crime but the facts stated in
the information. In relating the facts constituting the alleged crime, the
fiscal further says that the offended party was a municipal president and
therefore an agent of authority. This, however, is nothing but a mere conclusion
of law which can be considered discarded from the information. The allegation
made that the offended party was a municipal president is sufficient to make one
understand that the crime charged in the information is that of assault upon a
person in authority. For this reason, we believe that, in accordance with the
information filed in this case, the accused can be found guilty of the crime of
assault upon a person in authority.

In accordance with the recommendation of the Attorney-General, we hereby
declare the defendant guilty of the crime of assault upon a person in authority
in accordance with article 249, paragraph 2, in connection with article 250,
paragraph 3 of the Penal Code, and, modifying the judgment appealed from, we
hereby sentence the accused to the penalty of 4 years, 2 months, and 1 day of
prision correccional, to pay a fine of 625 pesetas, or to suffer the
corresponding subsidiary imprisonment in case of insolvency, and to pay the
costs.

In view, however, of the special circumstances of the case and of the degree
of malice and the damage caused, which may be deducted therefrom, we believe
that the penalty imposed, by reason of the strict application of the provisions
above cited, is evidently excessive, and, in accordance with article 2 of the
Penal Code, it is hereby submitted and recommended to His Excellency, the
Governor-General, to grant the accused a partial pardon by reducing the penalty
to 10 months of prision correccional. So ordered.

Torres, Johnson, Street, and Fisher, JJ., concur.

^[1] U. S. vs. Tabiana ahd
Canillas (37 Phil. Rep., 515).

DISSENTING OPINION

MALCOLM, J., dissenting:

My views can best be presented by retrogressive elimination :

1. Should a person who slaps a municipal president be found guilty of a
violation of articles 249 and 250 of the Penal Code because he laid hands on a
person in authority, and sentenced therefor to four years, two months and one
day of prision correccional, to pay a fine of 625 pesetas, with subsidiary
imprisonment in case of insolvency, and to pay the costs of both instances all
as recommended by the Solicitor-General and agreed to by a majority of this
court?

The information by means of which the charge was initiated, under which the
accused was arraigned, and regarding which the judge of first instance in his
decision was in no doubt, charged the accused only with assaulting an agent of
an authority.

Certainly, we should not now strain the language of the information to
include what it was not intended to include, simply to furnish a means by which
this offender can be severely punished.

2. Is the accused guilty of a violation of articles 249 and 250 of the Penal
Code or of the lesser offense penalized by article 252? The doctrine announced
in The United States vs. Tabiana and Canillas ([1918], 37 Phil. Rep., 515) is
entirely applicable. Even if. it were not, in view of the entirely unjustifiable
penalties provided by the Code, intended to protect monarchial officials, the
principle should be broadened so as to include every reasonable contingency.
Under this hypothesis the defendant should be 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 him.

3. Should the defendant be acquitted? On the facts he should not. On the
ideas suggested in the dissenting opinion of the undersigned in United States
vs. Tabiana and Canillas, supra, he should be. On the assumption, however, that
chapter IV, title III, of the Penal Code is still in force, it being not
entirely appropriate to repeat over and over again this dissent, the defendant
should be convicted as above suggested, of a violation of article 252 of the
Penal Code. I hold to the latter view.