THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. RAFAEL GAVILE, DEFENDANT AND APPELLANT.

HULL, J.:

Appellant was convicted in the Court of First
Instance of Occidental Negros of the crime of arson. The principal
ground of the appeal is that as the crime took place at midnight, the
offended party could not recognize the accused as the perpetrator of
the crime. As against the argument of counsel for the defense that such
identification was impossible, we have the positive declaration of the
offended party, who insisted that the accused, personally well known to
him, was the guilty party. Even if the night was dark, there was some
light, the criminal had a lighted torch, and the offended party chased
the perpetrator from the scene of the crime to the house of the accused.

At that time the accused said to the offended party words to the effect that “if you come up I will kill you”.

The argument of counsel is contrary to ordinary
human experience. It is easy to recognize one’s intimate neighbors.
Argument alone cannot prevail over the direct testimony of record.

The Acting Solicitor-General urges that the offense
committed is that of arson, penalized under article 321, paragraph 1,
of the Revised Penal Code. The material portions of paragraph 1 read:
“* * * if the offendei shall set fire to any building, * * * knowing it
to be occupied at the time by one or more persons.”

There has been some discussion as to the nature of
the knowledge this section requires. The state cannot produce a
photograph of what is in the mind of the accused and yet knowledge is
an essential element of the crime and a mere suspicion would obviously
be insufiicient. Similar provisions were in the old Penal Code and in
the Spanish Penal Code. Viada in his commentaries upon this article
says (translation):

“In order that the offense of arson
which consists in setting fire to buildings in accordance with the
provisions of this article may be punished, the legislator prescribes
as an essential requisite that the author of the act be aware of the
presence therein of one or more persons. Inasmuch as said buildings
serve as dwellings and therefore the presence therein of one or more
persons is a matter of course, and the same is true with respect to
vessels in port which are never abandoned, we are of the opinion that
the presumption in such case is that the perpetrator of the arson was
fully aware of the presence of one or more persons therein and it
should be so held unless otherwise established.” (Vol. 3, page 603.)

In American Criminal Law the mental fact of
knowledge on the part of the accused may be inferred from the proven
facts and circumstances of the case the same as the existence of any
physical fact.

In this case appellant and the offended party are
near neighbors. They had been intimate friends. The appellant knew the
habits and customs of the family of the offended party. He knew it was
a large family that constantly slept in that building. When he went
there that night and saw the house closed, as it is the custom for
inhabitants of the barrios to close their homes when retiring for the
night, he certainly had no doubt or uncertainty, based upon many facts
addressed to his intelligence and his senses, that the dwelling at that
time was occupied by one or more persons.

There is no dispute over the fact that the building was unlawfully set on fire.

The defense is an alibi of a weak and unconvincing character.

We concur, therefore, with the views of the Acting
Solicitor-General that the crime comes within article 321, paragraph 1,
and that the aggravating circumstance of nocturnity was present. The
prescribed penalty that must therefore be imposed is reclusion perpetua in its maximum period.

The sentence as thus modified is affirmed. Costs against appellant. So ordered.

Avancena, C. J., Abad Santos, Vickers, and Diaz, JJ., concur.