THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. ROMAN DAMIAO, DEFENDANT AND APPELLANT.

Roman Damiao, the accused,, appealed from the judgment of the Court of First
Instance of Oriental Misamis convicting him of frustrated murder and sentencing
him to ten years, eight months and one day of reclusion temporal, to indemnify
the offended person in the amount of P300, with subsidiary imprisonment in case
of insolvency, and to pay the costs.

The information filed contains the
following allegations:

“That on or about the night of January 22, 1931, in the municipality of
Cagayan, Province of Oriental Misamis, Philippine Islands, and within the
jurisdiction of this court, the accused Roman Damiao, with treachery and evident
premeditation, willfully, unlawfully, and feloniously, and with the intent of
taking the life of one Cayetano Dablio, attacked the latter with a deadly
weapon, to wit, a bolo, wounding him in the left forearm and in different parts
of the body, thereby rendering said left forearm permanently useless, having
performed all the acts which would have produced the crime of murder but which
did not, by reason of causes independent of the defendant’s will, namely, the
able and timely medical attendance given said Cayetano Dablio, which prevented
his death in violation of article 403 in connection with article 3, paragraph 2,
of the Penal Code.”

Upon arraignment the appellant voluntarily pleaded guilty, but has now
appealed on the ground that the trial court erred in not granting his petition
to substitute for that plea the plea of not guilty.

The record shows that the trial court rendered a judgment of conviction on
May 26, 1931, of which the appellant was duly notified. On June 1st of the same
year, the latter filed a motion for reconsideration of the judgment and a notice
of appeal. In the first he prayed for leave to withdraw his plea of guilty and
to substitute one of not guilty, and that he be given an opportunity to present
evidence; but it was neither verified nor accompanied by an affidavit of merits.
On July 11, 1931, the court denied said motion of reconsideration.

In view of these facts we hold that the trial court did not err in denying
the aforesaid motion. In the first place, the petition was presented too late,
after the court had lost jurisdiction of the case by virtue of the appeal taken
by the appellant himself. In the second place, the motion was not supported by
an affidavit of merits, and was not even verified. After a judgment of
conviction has been rendered a motion filed for the purpose of substituting the
plea of guilty for the plea of not guilty theretofore entered, is equivalent to
a petition for rehearing, and must not only be verified but supported by an
affidavit of merits. It was so held in the case of the Fiscal of the City of
Manila vs. Del Rosario (52 Phil., 20). In that case it was said:

“The trial judge has control over judgments rendered by him until they become
final. He may set aside a judgment or revise it as he deems best in the interest
of justice. But the trial judge may not act so as to nullify the explicit
provisions of section 25 of the Code of Criminal Procedure, or any other
provision of law. After judgment, the showing made must be more than a mere
request, a mere motion, a mere petition, and must assume the characteristics of
a motion for the reopening of the case. Such reasons must exist as would justify
the granting of a new trial. The motion must be verified and supported by
affidavits.”

The penalty imposed is not in accordance with law. That fixed for frustrated
murder, article 403 in connection with article 65 of the Penal Code, is presidio
mayor in the maximum to cadena temporal in the medium degree. The aggravating
circumstance of evident premeditation alleged in the information, in addition to
the qualifying circumstance of treachery, being offset by the mitigating
circumstance of a plea of guilty, introduced by the Revised Penal Code, the
penalty must be applied in the medium degree, extending from twelve years and
one day to fourteen years and eight months.

The judgment appealed from is modified, and the appellant is sentenced to
twelve years and one day of reclusion, temporal, instead of cadena, temporal
which has been eliminated by the Revised Penal Code, to indemnify the offended
party in the amount of P300, the other accessories of law, and to pay the costs
of both instances. So ordered.

Avanceña, C. J., Johnson, Street, Malcolm, Villamor, Romualdez, and
Villa-Real, JJ., concur.