THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. LUIS LAPITAN AND DALMACIO LAPITAN, DEFENDANTS AND APPELLANTS.

Luis Lapitan, Gaudencio Lapitan, and Dalmacio Lapitan were charged in
the Court of First Instance of Nueva Ecija with the crime of assault
upon an agent of a person in authority, committed as follows:

“That
on or about the 29th day of January, 1932, in the municipality of
Rizal, Province of Nueva Ecija, Philippine Islands, and within the
jurisdiction of this court, the abovenamed accused Luis Lapitan and
Gaudencio Lapitan who had a shotgun and bolo respectively together with
Dalmacio Lapitan, conspiring and aiding one another, did then and there
voluntarily, maliciously, illegally and criminally attack, assault, and
hit Juan Sambrano who was then an agent of authority, he being a
municipal police, while said Juan Sambrano was engaged in the
performance of his official duty, to wit, when he was acting as deputy
sheriff and was in custody of 52 cavans of palay placed under his
control.”

Upon the termination of the
trial, Judge E. V. Filamor found the appellants Luis Lapitan and
Dalmacio Lapitan guilty of a violation of article 151 of the Revised
Penal Code, and sentenced each of them to suffer two months and one day
of arresto mayor, and to pay a fine of P150, with the
corresponding subsidiary imprisonment in case of insolvency, and to pay
the proportionate part of the costs. The defendant Gaudencio Lapitan
was acquitted, with one-third of the costs de oficio.

The appellants make the following assignments of error:

“I. El Juzgado a quo incurrio en error al no conceder credito a las declaraciones de los acusados.

“II. El Juzgado a quo
incurrio en error al estimar probado el delito previsto y penado en el
articulo 151 del Codigo Penal vigente, y condenar por el mismo a los
acusados Luis Lapitan y Dalmacio Lapitan, cada uno, a dos (2) meses y
un (1) dia de arresto mayor, con las accesorias de ley, a una multa de
ciento cincuenta pesos (P150), sufriendo, en caso de insolvencia, el
arresto subsidiario correspondiente, y al pago de una tercera parte de
las costas.

“III. El Juzgado a quo incurrio en error al no absolver a los apelantes.”

It appears from the evidence that on December 10, 1931 an order of
execution was issued by the justice of the peace of Cabanatuan in civil
case No. 2046 against Pedro Ablao and in favor of Laureana Aves for 60
cavans of palay, returnable within sixty days; that Pedro Ablao was
notified of this writ on January 8, 1932; that on January 14, 1932,
Luis Lapitan, one of the appellants herein, filed a third party claim
with the provincial sheriff to the palay that had been levied upon. The
provincial sheriff required the judgment creditor to execute an
indemnity bond, but as the creditor delayed in complying with this
requirement, the provincial sheriff directed the chief of police of the
municipality of Rizal, Province of Nueva Ecija, who was a deputy
sheriff ex oficio, to deliver the palay to the third party
claimant, and on January 20, 1932 Juan Sambrano, a policeman of the
municipality of Rizal, acting in accordance with instructions from the
chief of police of that town, delivered the palay to Luis Lapitan. On
January 22d, the provincial sheriff directed the chief of police of
Rizal to take possession of the palay again, because the judgment
creditor had furnished the indemnity bond. The chief of police returned
this order with the information that the palay had already been
delivered to Luis Lapitan; but the provincial sheriff sent back the
papers and directed the chief of police of Rizal to take possession of
the palay again immediately.

The offended party testified
that on January 29, 1932, the acting chief of police sent him to watch
the palay; that while he was there the defendants arrived with two
carts, and that when he asked Luis Lapitan why they had brought the
carts, he replied that they had come to get the palay. The defendants
insisted on taking away the palay, while the policeman maintained that
they had no right to do so without an order from the court. In the
altercation that followed Dalmacio Lapitan struck the policeman with
his fist, and Luis Lapitan threatened him with a gun. The three
defendants pushed the policeman away and removed the palay.

An examination of the record does not disclose any reason that would
justify us in disturbing the trial judge’s findings of fact. The only
difficulty which the case presents is the determination of whether or
not the offended party, a member of the police force of the
municipality of Rizal, was lawfully discharging his official duties
when he was assaulted. This involves the question of the service of
process of a justice of the peace.

Section 217 of the Revised Administrative Code reads as follows:

“The
sheriff of the province shall serve or execute, or cause to be served
and executed, all civil writs, processes, and orders issued by any
justice of the peace in the province; and civil process, other than
executions, may be served by any person designated by the justice for
that purpose. Criminal process issued by a justice of the peace shall
be served or executed by the president of the municipality or other
local political division, by means of the local police, or in the City
of Manila by the members of its police department; but such process may
also be served or executed with equal effect by the sheriff.

“Criminal
process may be issued by a justice of the peace, to be served outside
his province, when the judge of first instance of the district, or in
his absence the provincial fiscal, shall certify that in his opinion
the interests of justice require such service.”

Section 184 of the Revised Administrative Code, as amended by Act No.
3598, provides that the provincial sheriffs in provinces of the first
and second class may appoint three deputies; in provinces of the third
and fourth class, two deputies; and in provinces of the fifth and sixth
class, one deputy; and that the chief of police in each municipality
shall be ex oficio deputy sheriff in his municipality without additional compensation.

The present case involves an order of execution issued by the justice
of the peace of Cabanatuan. The personal property levied upon was
situated in the municipality of Rizal in the same province. After the
palay had been levied upon, Luis Lapitan, one of the accused filed a
third party claim, and because of the judgment creditor’s delay in
furnishing the indemnity bond required by the provincial sheriff, the
palay was delivered to said claimant. Once the palay was delivered to
him, as evidenced by his receipt, Exhibit 2, the original levy ceased
to be of any force or effect, and he had the right to retain possession
of the palay until it was again levied upon in accordance with the law.

In the case of Walker and Rohde vs.
McMicking (14 Phil., 668), it was held that a valid levy requires that
the sheriff shall take and retain actual possession of the property;
that if the sheriff fails to maintain control the levy becomes invalid
and cannot prevail over the rights of subsequent rightful possessors of
the property.

In the case at bar the order of execution,
which is dated December 10, 1931, was made returnable within sixty
days. It was therefore still valid when the provincial sheriff directed
the chief of police of Rizal as deputy sheriff ex oficio, on
January 25, 1932, to seize the palay again by virtue of the writ of
execution in the possession of the chief of police as deputy sheriff.
In accordance with this order the chief of police as a deputy sheriff ex oficio ordered the municipal policeman, Juan Sambrano, to take possession again of the palay in question.

The attorneys for the appellants maintain that the chief of police as a deputy sheriff ex oficio
was not authorized by law to delegate the seizure of the palay to a
policeman, but that it was necessary for the chief of police in person
to levy upon the palay.

Although we admit that there is some
force in the argument of counsel for the appellants, we cannot believe
that it was the intention of the Legislature, when it limited the
number of deputies a provincial sheriff could appoint to three in the
most important provinces and made the chief of police of each
municipality a deputy sheriff ex oficio without additional
compensation, that the chief of police should be required to perform
personally the duties of a deputy sheriff in his municipality. It is
obvious that such a requirement might make it necessary for the chief
of police to devote a large part of his time to the performance of the
duties of deputy sheriff, and thereby seriously interfere with the
discharge of his duties as the head of the police force. The chief of
police of each municipality is, as we have seen, made a deputy sheriff
by virtue of his office, without additional compensation, and we think
it must have been the intention of the Legislature that he might make
use of the members of the police force under him in discharging the
duties devolving upon him as a deputy sheriff.

The
Solicitor-General maintains that the acts of the appellants constitute
a violation of article 148 of the Revised Penal Code, and that their
sentence should be increased to three years, six months, and twenty-one
days, but in our opinion their acts do not require the imposition of
the severer penalty. The decision of this court in the case of United
States vs. Tabiana and Canillas (37 Phil., 515), referring to
the difference between the provisions of articles 249 and 252 of the
Penal Code applies with equal force to articles 148 and 151 of the
Revised Penal Code.

The decision appealed from is affirmed, with the costs against the appellants.

Avanceña, C. J., Street, Abad Santos, and Butte, JJ., concur.