THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. FELIX GAYRAMA, DEFENDANT AND APPELLANT.

DIAZ, J.:

Felix Gayrama was charged in the Court of First Instance of Leyte in
two cases with murder with assault upon agents of persons in authority,
the victim in the former case being policeman Placido Delloro (criminal
case No. 8922), and in the latter chief of police Fernando Corpin
(criminal case No. 8923); with frustrated murder with assault upon an
agent of persons in authority in another case (criminal case No. 8924),
and furthermore with serious physical injuries in another (criminal case
No. 8925).

The accused was convicted in all said cases but the
trial court declared him guilty only of homicide with assault upon
agents of persons in authority in each of the former two cases and of
slight physical injuries in the latter two. In the latter cases he was
sentenced to pay a fine of P300 and to indemnify Eugenio Nierras in the
sum of P192.70 (case No. 8924), and to two months of arresto mayor
(case No. 8925), with costs; and in each of the former cases he was
sentenced to sixteen years of reclusion temporal with the
corresponding accessories of the law, and to iffifemnify the fteirs of
each of his victims in the sum of P1,000, also with costs. He did not
appeal from the sentence imposing upon him the penalties of fine and arresto
mayor but appealed from that sentencing him to sixteen years of reclusion
temporal with the accessories of the law plus indemnities in the
sum of P1,000.

In support of his appeal Felix Gayrama assigns in
his brief six alleged errors as committed by the lower court in its
decision and sentence in case No. 8923 (G. R. No. 39271): and five
alleged errors as committed by it in its decision and sentence in case
No. 8922 (G. R. No. 30270), which are stated as follows:

“(Criminal case No. 8923; G. R. No. 89271)

“The court a quo erred:

“I. In. having declared that the accused-appellant
volunr tarily and intentionally assaulted the deceased Fernando Corpin,
although the wound that resulted in his death was actually and truly
caused by an accident in the fight when both the accused and the
deceased, struggling for the possession of the weapon, fell to the
ground because the deceased stumbled against a fallen coconut tree, and
it was in his fall that the injury was accidentally caused.

“II. Granting for the sake of argument that the
wound in question had been the effect of an intentional aggression on
the part of the accused, nevertheless, the court a quo erred in not
considering that said act of the accused had been committed in
legitimate self-defense as he was at that moment the subject of an
unlawful aggression on the part of the deceased and several other
persons who pursued and threw stones at him.

“III. The court, therefore, erred in not
considering that all the requisites of a legitimate self-defense were
present in this case.

“IV. The court a quo erred in declaring that the
deceased Fernando Corpin was acting as an agent of persons in authority
during the incident in question.

“V. Even granting that the deceased was chief of
police and that he was acting as such, that is, he was trying to arrest
the accused at the time of the incident in question, nevertheless, the
court a quo erred in not declaring that said deceased exceeded
his authority in unjustifiably assaulting the accused who was then
fleeing not certainly to avoid arrest but from the mobs that were
pursuing and throwing stones at him with danger to his life, one of
which mobs was led by the deceased himself.

“VI. The court a quo also erred in
declaring the accusedappellant guilty of homicide with assault upon
agents of persons in authority and in imposing upon him the penalty of reclusion
temporal in its maximum period, without furthermore taking into
consideration the presence of several mitigating circumstances, to wit:
(1) unlawful aggression; (2) lack of provocation on the part of the
defendant; (3) passion and obfuscation; and (4) voluntary surrender to
the authorities, which circumstances, by their number and weight,
produce the effect of reducing the penalty by two periods in the general
scale.”

“(Criminal ease No. 8922; G. R. No. 39270)

“The court a quo erred:

“I. In not having taken into consideration the
presence in this case of all the exempting circumstances in favor of the
accused-appellant who acted in legitimate self-defense.

“II. In having declared that the deceased
policeman DeIloro aimed his revolver at the accused-appellant ‘perhaps
for the purpose of snatching the bolo from the latter’.

“III. If the deceased, as municipal policeman, was
acting as such on said occasion, the court, however, erred: (a)
in assuming that the accused-appellant, in assaulting said deceased,
knew said circumstance and (b) in not declaring that the
deceased acted with abuse of his authority.

“IV. The court, therefore, erred in declaring the
accused guilty of the complex crime of homicide with assault upon an
agent of persons in authority.

“V. The court a quo also erred in imposing upon
the accused the maximum period of reclusion temporal, without
furthermore taking into consideration the presence of the very qualified
mitigating circumstances, to wit: (1) unlawful aggression; (2) lack of
provocation on the part of the accused; (3) passion and obfuacation; and
(4) voluntary surrender to the authorities, which produce the effect of
reducing the penalty by two periods in the general scale.”

The evidence for the prosecution and that for the
defense agree on the following facts, to wit: that the chief of police
Fernando Corpin received a necessarily mortal wound on his left side
level with the stomach, which wound was caused by a bolo, piercing the
abdominal cavity from side to side; that safd wound resulted in Fernando
Corpin’s death two hours later; that policeman Delloro, in turn,
received twelve wounds on various parts of his body, five of which were,
as Fernando Corpin’s wound, necessarily fatal, and resulted in said
Delloro’g death at the scene of the crime. The appellant, in open court,
admitted having been the author of die aggression and of the death of
said two deceased, but defended himself, as he now defends himself in
this instance, by alleging that he had merely acted in legitimate
selfdefense.

The two crimes with which the appellant was charged
were the climax of some encounters which took place at noon on April 18,
1931, in the municipality of Biliran, Leyte, between Francisco Gayrama,
a brother of said appellant, and Amado Aragon, on one side, and Higino
Corpin, Simeon Rosales, Manuel Nierras and others, on the other. On said
date the registration of voters in the electoral census took place in
the different election precincts of said municipality. The electors
therein were then divided into two factions: one in favor of the
candidacy for municipal president of the then incumbent Eugenio Nierras
who ran for reelection and the other which, in turn, favored the
candidacy of Francisco Tonelete who aspired for the same office.

Inasmuch as the majority of the election inspectors
of election precinct No. 2, composed of Higino Corpin and Simeon Rosales
of the Nierras faction, had rejected the. applicationof electors
Eustaquio Dincong and Remigio Aragon of the Tonelete faction, who were
at that time accompanied by. Francisco. Gayrama, to be permitted to cast
their votes with the aid of another person by reason of defective
eyesight, said inspectors engaged in a discussioHi which at timesbecame
heated, with the other inspector Jose Napalit of the Tonelete faction,*
in the presence not only of said Francisco Gayrama and those of his
faction but also of those of theNierras faction, due to the insistences
of the former (Napalit) that said applications of itbetwo elector^ in
question should be favorably considered. President Eugenio Nierras, who
was informed of the incident, upon going to said precinct sometime
before noon on that day, gave orders to policeman Clodoalcfo Abrigo, his
brother, to arrest Francisco Gayrama if the latter should again go up
into the precinct (the precinct tor all appearances was in the upper
story of a building), after Gayrama had been ordered to go down with his
followers.

While Francisco Gayrama and his followers were going
home without having attained the purpose which brought them to the
election precinct, he told Amado Aragon, almost shouting because he was
sufficiently far from the latter to inform their candidate Francisco.
Tonelete of the result and incidents of their petition to the board of
election inspectors. Inspector Higino Corpin, who was not far away
because he was also on his way home with the other inspector Simeon
Rosales, thinking himself alluded to, challenged Francisco Gayrama to a
fight forthwith hitting the latter on the arm with his fist, and both
grappled. They were separated by Amado Aragon who was near by, telling
them not to fight because both of them as the others, were from Biliran.
This intervention of Amado Aragon must not have been pleasing to Simeon
Rosales for, approaching Aragon, he seized the latter by the body and
threw him to the ground. This incident having made things worse, Higino
Corpin ordered policeman Clodoaldo, who was near by, to arrest Francisco
Gayrama who, in order to avoid being arrested, ran away followed by
Amado Aragon in the direction of the house of one Juan de Paz. They were
pursued by Higino Corpin, Simeon Rosales, policeman Abrigo and
followers who were informed of the incident while the latter were in the
house of president Nierras. Manuel Nierras, son of said president, upon
overtaking Francisco Gayrama, intercepting him in order to block his
way, caught Francisco Gayrama by the neck and one of the legs and
lifting him in the air flung him to the ground thereby causing a
dislocation of one arm. Amado Aragon, coming to Francisco Gayrama’s
defense, hit Manuel Nierras on the back with his fist and, seeing that
things were going from bad to worse, seized a stake to defend himself
from the aggression of Nierra’s followers. Amado Aragon and Francisco
Gayrama, taking advantage of the desistance, rather than indecision, of
the former from continuing to attack them, went on their way to take
refuge in Francisco Gayrama’s house.

While the foregoing incident was taking place, the
appellant whose turn was to stay in the house of his other brother,
Prudencio Gayrama, the Tonelete faction’s candidate for vice-president,
in order to prepare food for the electors of their faction, observed
from the movement of various persons from one place to another that
something extraordinary was taking place, and was furthermore informed
by Crispin Barili that his brother Francisco Gayrama and Amado Aragon
had been assaulted by many people. The appellant, upon going down from
his brother Prudencio’s house, carried a bolo on his belt as he had just
slaughtered a pig, and he left the house in order to make sure and see
with his own eyes what was really happening to his brother Francisco. He
arrived in front of Petronilo Jadulco’s house and as soon as he was
seen by president Nierras, who had already been informed of the incident
between the latter’s followers on one side, and Francisco Gayrama and
his followers on the other, said president Nierras approached him and
asked him whether he had also come there to challenge the president and
followers to a fight Without waiting for a reply, the president slapped
him on the left cheek. Almost simultaneously, Esteban Nierras, the
president’s brother, kicked the appellant, felling him. When said
appellant noted that the president was about to repeat the aggression by
slapping him, he unsheated his bolo and slashed the president on the
posterior part of the left arm inflicting thereon a wound 4 inches long,
3 inches wide and 1 inch deep. Said president, upon feeling himself
wounded, cried for help saying that Felix Gayrama had wounded him, at
the same time ordering his men and chief of police Fernando Oorpin to
arrest Gayrama. The appellant, after wounding the president, ran away,
pursued by chief of police Fernando Corpin, Manuel Nierras, Godofredo
Corpin, Clodoaldo Abrigo and others who in their pursuit threw stones at
said appellant, hitting and injuring him on various parts of the body.
The stone which Fernando Corpin threw at the appellant hit the latter on
the right cheek, causing him to stagger for the moment, for which
reason said Fernando Corpin, the deceased chief of police, succeeded in
overtaking him and holding him by both hands. Thus held, the appellant
struggled to free himself from Fernando Corpin who, unfortunately,
stumbled against something—a fallen tree according to some witnesses—and
fell, exposing his left side. The appellant, taking advantage of this
opportunity, plunged the bolo which he carried into Corpin’s body,
piercing his abdomen. The appellant immediately fled and in doing so
came upon the deceased policeman Placido Delloro who, as he shouted to
the appellant: Justice! Justice! suggesting to the latter to surrender,
discharged his revolver at the appellant missing him. The appellant,
seeing said policeman about to shoot at him again approached the
policeman and, striking the latter on the wrist with his bolo, made him
drop his firearm. The policeman attempted to pick up his firearm from
the ground but the appellant shoved him and after he had fallen slashed
him several times, with his bolo, furthermore plunging it into the
policeman’s body until the latter died. The autopsy later disclosed that
one of the wounds received by the deceased Delloro was inflicted on his
right wrist.

Before the acts with which the appellant is charged
were committed, there were in the house of president Nierras about 50 or
60 of the latter’s followers and some of them, upon seeing the
appellant and thinking that he was trying to join his brother Francisco
Gayrama and Amado Aragon in order to resist policeman Clodoaldo Abrigo
and his companions, such as Manuel Nierras and his followers, who had
received orders to arrest said Francisco Gayrama and Amado Aragon, threw
stones at said appellant forcing him to retreat and take another way
until president Eugenio Nierras saw him and maltreated him as above
stated.

From the foregoing proven facts, the following
questions arise: (1) Does the appellant’s act of killing chief of police
Fernando Corpin constitute homicide with assault upon an agent of
persons in authority? (2) Does the appellant’s act of depriving
policeman Placido Delloro of his life also constitute homicide with
assault upon an agent of persons in authority?

As to the first question, the evidence shows that
Fernando Corpin was wearing a felt hat with a cord usually worn by
chiefs of police as part of their uniform, a faded khaki shirt and also
khaki pants. There is no question but that this uniform, which is
undoubtedly a policeman’s, was sufficient to call the appellant’s
attention to the fact that he was dealing with a peace officer.
Furthermore, the appellant himself kneW Fernando Corpin to be the
municipal chief of police. He assaulted said officer while the latter
was performing his duties as such inasmuch as said chief of police had
been ordered by president Eugenio Nierras, his immediate superior, to
arrest the appellant for having wounded said president with his bolo,
and furthermore because, as said chief of police had witnessed the
aggression, it was inevitable for him to-make the arrest. The reason for
this is that it is the duty of peace officers to arrest violators of
the law not only when they are provided with the corresponding warrant
of arrest, but also when they are not provided with said warrant if the
violation is committed in their own presence; and this duty extends even
to cases the purpose of which is merely to prevent a crime about to be
consummated. (U. S. vs. Bertucio, 1 Phil., 47; U. S. vs.
Resaba, 1 Phil., 811; U. S. vs. Vallejo, 11 Phil., 193; U.
S. vs. Santos, 36 Phil., 853.) This same power was authorized
by rule 28 of the Provisional Law for the application of the provisions
of the old Penal Code, which was in force at the time the two complex
crimes under consideration were committed; and from the provisions of
article 124 of the Revised Penal Code, it may be reasonably inferred
that peace officers until now have such authority, notwithstanding the
fact that the former law has been repealed by article 367 of said
Revised Penal Code.

It cannot be said that there was a previous unlawful
aggression, on the part of the deceased Fernando Corpin because the
fact that he threw stones at the appellant while the latter was running
away was not entirely unjustified, taking into consideration the fact
that the purpose of the deceased in so doing was to succeed in capturing
and arresting the appellant who was escaping because he had assaulted
municipal president Eugenio Nierras. It is not strange that the deceased
employed said means to detain the appellant because he was then
entirely unarmed. If he had been armed with a revolver and had used it
against the appellant, his act under those circumstances would have been
fully justified.

There is not the least doubt but that there was no
reasonable necessity of the means employed by the appellant to repel
Fernando Corpin’s aggression because the evidence shows that there was
not even any aggression from which he had to defend himself and that the
fact of holding a person by the hands in order to place him under
arrest is not the aggression referred to in the law constituting one of
the elements of legitimate self-defense. At any rate there was
absolutely no necessity for the appellant to use his bolo because the
deceased was unarmed, it being evident, therefore, that there was no
proportion between the aggression—even granting by way of a hypothesis
that such an ¦aggression existed—and the means employed to repel it,
particularly because said deceased had fallen to the ground.

As regards the deceased Placido Delloro, the
evidence shows that he was on guard in the municipal building when he
was informed of the aggression committed by the appellant on municipal
president Eugenio Nierras and chief of police Fernando Corpin. As soon
as he had received the municipal president’s order to capture said
appellant, he left his post in order to comply with said order and,
before discharging his revolver at the appellant, he made himself known
as a peace officer by shouting to said appellant, Justice! Justice! for
the purpose of suggesting to the latter to surrender. Inasmuch as the
appellant would not stop but instead continued to run toward him, bolo
in hand, said policeman prepared to fire another shot at the appellant
and it was while he was in this position that the appellant rushed at
him to strike him on the wrist of his hand holding the revolver, forcing
him to drop said weapon. While the deceased Delloro was trying to pick
up said revolver with his left hand, the appellant shoved him, felling
him to the ground, -and forthwith repeatedly struck him with his
(appellant’s) bolo until he died.

The record discloses, although it does not so state
clearly, that the place where the policeman dropped his revolver by
reason of the bolo wound inflicted on his wrist, was quite a distance
from where he was killed by said appellant, which fact leads us to the
conclusion that when said appellant repeatedly struck the deceased with
his bolo, all danger that might have come from said deceased had already
ceased and therefore there was no necessity of killing him.

Under the circumstances when policeman Delloro
suggested to the appellant to surrender by shouting to him, Justice!
Justice! he was justified in firing the shot from which the appellant
claims to have defended himself with his bolo because it was evident
that the case involved the detention of a man who had committed two
crimes, one on the person of municipal president Eugenio Nierras and the
other on that of chief of police Fernando Corpin, whichcrimes were both
serious in nature. Furthermore, said deceased reasonably believed that
the appellant, being armed, might injure more persons, taking into
consideration the strained relations between the followers of the two
rival political factions in Biliran.

Now then, inasmuch as this court is already
convinced that the appellant committed the two complex crimes of
homicide with assault with which he was charged, the next question to be
decided is that which concerns the penalty or penalties which should be
imposed upon him.

Article 89 of the old Penal Code, which was still in
force when the two crimes in question were committed, provides that the
penalty for the more serious crime, the same to be applied in its
maximum period, should be imposed upon a person found guilty of a
complex crime. Homicide is punished in said Code with reclusion
temporal to its full extent, and that of assault upon an agent of
persons in authority with prision correccional in its medium
period to prisidn mayor in its minimum period and a fine of not less
than 625 and not more than 6,250 pesetas. This seems to justify
the imposition upon the appellant, in both cases, of the penalty
corresponding to homicide, in its maximum period, that is, from
seventeen years, four months and one day to twenty years of reclusion
temporal, which penalty is exactly the same as that prescribed in
article 48, in connection with article 249, of the Revised Penal Code.

Inasmuch as the mitigating circumstances of
obfuscation, lack of instruction and voluntary surrender to the
authorities should be taken into consideration in favor of the accused
on the ground that the evidence shows that he scarcely knows how to
write his name and that he voluntarily surrendered to the provincial
fiscal of Leyte on the day following the incidents under consideration,
should his penalty be necessarily fixed at seventeen years, four months
and one day of reclusion temporal with the corresponding
accessories and the indemnity provided in the appealed judgment?
Undoubtedly not, because it is a rule that when an act is attended by
two or more mitigating circumstances with no aggravating circumstance to
change their value, the penalty next lower to that prescribed by law
should be imposed upon the accused in the period that the court may deem
applicable, according to the number and nature of such circumstances.
(Rule 5 of article 64 of the Revised Penal Code, which is the same as
rule 5 of article 81 of the old Penal Code, as amended by Act No. 2298.)

By virtue of said rule, the penalty which should be
imposed upon the accused is the one next lower to reclusion temporal
in its maximum period which is no other than reclusion
temporal in its medium period. This is evident, taking into
consideration rule 5 of article 61 of said Revised Penal Code, which is
literally rule 5 of article 75 of the old Penal Code. Said rule reads as
follows:

“When the law prescribes a penalty for a crime in
some manner not specially provided for in the four preceding rules, the
courts, proceeding by analogy, shall impose corresponding penalties upon
those guilty as principals of the frustrated felony, or of attempt to
commit the same, and upon accomplices and accessories.”

The four rules to which rule 5 refers read as
follows:

“1. When the penalty prescribed for the felony is
single and indivisible, the penalty next lower in degree shall be that
immediately following that indivisible penalty in the scale prescribed
in article 70 of this Code.

“2. When the penalty prescribed for the crime is
composed of two indivisible penalties, or of one or more divisible
penalties to be imposed to their full extent, the penalty next lower in
degree shall be that immediately following the lesser of the penalties
prescribed in the above mentioned scale.

“3. When the penalty prescribed for the crime is
composed of one or two indivisible penalties and the maximum period of
another divisible penalty, the penalty next lower in degree shall be
composed of the medium and minimum periods of the proper divisible
penalty and the maximum period of that immediately following in said
scale.

“4. When the penalty prescribed for the crime is
composed of several periods, corresponding to different divisible
penalties, the penalty next lower in degree shall be composed of the
period immediately following the minimum prescribed and of the two next
following, which shall be taken from the penalty prescribed, if
possible; otherwise, from the penalty immediately following in the above
mentioned scale.”

It will be seen from said four rules that the
appellant’s case does not fall directly under any of them. It follows,
therefore, that the question should be determined by proceeding by
analogy to rule 4, in conformity with said rule 5. And it should be so
because the penalty of reclusion temporal in its maximum period
is divisible into three periods, the duration of the maximum period
thereof being from nineteen years, one month and eleven days to twenty
years; that of the medium period from eighteen years, two months and
twenty-one days to nineteen years, one month and ten days, and that of
the minimum period from seventeen years, four months and one day to
eighteen years, two months and twenty days. Such procedure is expressly
authorized in article 82 of the old Penal Code which has become article
65 of the Revised Penal Code. Said article reads as follows:

“In cases in which the penalty prescribed by law
is’not composed of three periods, the courts shall apply the rules
contained in the foregoing article, dividing into three equal portions
the time included in the penalty prescribed, and forming one period of
each of the three portions.”

There can be no doubt but that the penalty prescribed
by law for the crimes committed by the appellant is reclusion
temporal in its maximum period, on the ground that it is so
expressly provided in said article 89 of the old Penal Code or article
48 of the Revised Penal Code. In the case of People vs. Co Pao
(58 Phil., 545), this court, notwithstanding what has been stated in the
case of United States vs. Fuentes (4 Phil., 404), held that
the penalty next lower to prision mayor in its maximum period
is prision mayor in its medium period. Without repeating the
reasons stated therein and proceeding by analogy, taking into
consideration said rule 5 of article 75 of the old Penal Code (article
61, rule 5, of the Revised Penal Code), this court is of the opinion
that the penalty which should be imposed upon the appellant in each of
the two cases under consideration, is reclusion temporal in its
medium period, or fourteen years, eight months and one day, which is
the minimum of said penalty, tlue to the weight and number of the
attendant mitigating circumstances in his favor, which are lack of
instruction, passion or obf uscation and voluntary surrender to the
authorities; and in order to grant him the benefits of Act No. 4103, the
minimum of said penalty of fourteen years, eight months and one day
would have to be fixed at twelve years and one day because, following
the rule already stated, the penalty next lower to reclusion temporal in
its medium period is correctly reclusion temporal in its minimum
period.

Wherefore, with the modification that the appellant
is sentenced in each of said cases Nos. 8922 and 8923 of the Court of
First Instance of Leyte (G. R. Nos. 39270 and 39271, respectively), to
the indeterminate penalty of from twelve years and one day to fourteen
years, eight months and one day of reclusion temporal, and to
indemnify the heirs of the deceased Fernando Corpin and Placido Delloro
in the sum of P1,000, the appealed judgment is affirmed in all other
respects, with costs against the appellant. So ordered.

Street, Abad Santos, Hull, and Vickers,
JJ., concur.