THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. SERAFIN DUNGKA Y STA. MARIA (ALIAS SERAFIN SANTA MARIA), DEFENDANT AND APPELLANT.

This is an appeal from a judgment of the
Court of First Instance of Manila finding the defendant guilty of the
crime of attempted robbery with homicide. The information is as
follows:

“That on or about the 15th day of December,
1936, in the City of Manila, Philippine Islands, the said accused did
then and there willfully, unlawfully and feloniously ask one Sy Ha to
give him money and the latter gave him five centavos; but the accused
by means of intimidation demanded some more money from said By Ha, and
when the latter refused to do so, the accused, without any just motive,
and with the decided purpose to kill, did then and there willfully,
unlawfully and feloniously attack, assault and wound said Sy Ha with a
dagger, thereby inflicting upon him three wounds, which directly caused
his death.

“That the accused Serafin Dungka y Sta. Maria (alias
Serafin Sta. Maria) has previously been convicted once of theft and
once of robbery in an inhabited house by virtue of final judgments
rendered by competent courts, as follows :

Nature of Offense	Date of commission of victim	Date of conviction	Penalty	Date of release
Theft M. C. D. F.-87951	May 8, 1938	May 9, 1938	1 month and 1 day.	June 5, 1933
Robbery in an inhabited house Court of First Instance, D-47017	Nov. 29, 1933	Dec7, 1933	6 months and 1 day and to pay Sy Tong Kang P4.71	May 12, 1934

and is therefore a habitual delinquent under the provisions of article
62, paragragh 5, of the Revised Penal Code, the date of his release
from confinement in connection with his last offense of robbery in an
inhabited house being on May 12, 1934.”

Upon arraignment,
the accused pleaded not guilty but when the case was called for trial
he withdrew that plea, substituted it with that of “guilty”, and asked
leave of the court to prove that he was under the influence of liquor
when he committed the crime, and that he did not intend to commit so
grave a wrong as that committed. Thereafter, on December 31, 1936, the
court found him guilty under article 2491 in relation to article 48 of
the Revised Penal Code and sentenced him to eighteen years, eight
months and one day of reclusion temporal with the accessory
penalties provided by law to indemnify the heirs of the deceased in the
sum of P1,000, and to pay the costs. For being a habitual delinquent,
the court imposed upon the accused an additional penalty of three
years, six months and twenty-one days of prision correcional.
Subsequently, on January 4, 1937 the court amended its decision and
sentenced the accused to suffer the same principal, accessory and
additional penalties and to pay the same indemnity and costs, under
article 297 of of the Revised Penal Code instead of under article 249
in relation to article 48 of the same Code, Here on appeal the accused
contends that:

“1.° El Juzgado erro al
declarar que la circunstancia de embriaguez como atenuante no esta
prevista en el Codigo Penal Revisado, y al no apreciarla en favor del
acusado.

“2. El Juzgado erro al no estimar en favor del
acusado la circunstancia atenuante de no haber tenido la intenci6n de
causar un mal de tanta gravedad como el que produjo.

“3.°
El Juzgado erro al compensar la circunstancia atenuante de confesi6n
expontanea de culpabilidad con dos circunstancias agravantes de
reincidencia.

“4.° El Juzgado erro al condenar al acusado
a sufrir DIEZ Y OCHO ANOS, OCHO MESES Y UN DIA DE RECLUSION TEMPORAL, Y
MAS UNA PENA ADICIONAL DE TRES ANOS, SEIS MESES Y VEINTIUN DfAS DE
PRISON CORRECCIONAL, aplicandole el artfculo 297 del Codigo Penal
Revisado,”

The first assignment of error is well taken.

According to the trial court, intoxication as a mitigating
circumstance is not provided in the Revised Penal Code. It should be
noted, however, that intoxication is now an alternative circumstance
and “* * * shall be taken into consideration as a mitigating
circumstance when the offender has committed a felony in a state of
intoxication, if the same is not habitual or subsequent to the plan to
commit said felony; but when the intoxication is habitual or
intentional it shall be considered as an aggravating circumstance.”
(Art. 15, Rev. Penal Code.) It is not denied that the
defendant-appellant was in a state of intoxication when he committed
the offense charged. He testified as follows:

“El ACUSADO.	Yo venia de la Calle Bilbao, y al pasar por la Calle Lakandola, alii fue donde yo bebi. Despues de beber me retire a casa, pasando por detras del Hospital Mary Johnston y alii me encontre con el occiso, y nos chocamos.
“Sr. AZARRAGA.	¿Que cantidad de bebida tomo Ud.?
“El ACUSADO.	Primeramente seis centimos, y despuee, diez centimos de ginebra.
“Sr. AZARRAGA.	¿Y se quedo borracho?
“El ACUSADO.	Si, senor.
“Sr. AZARRAGA.	Es todo.
“Sr. FISCAL.	¿Es costumbre de Ud. emborracharse?
“El ACUSADO.	Antes no.
“Sr. FISCAL.	En la fecha de autos I por que tomo Ud. 6 centimos de ginebra?
“El ACUSADO.	Desde que yo vivi en la Calle Bilbao, fue, cuando aprend! beber en la casa de un amigo.
“Sr. FISCAL.	¿Cuanto tiempo hacia que vivia Ud. en la Calle Bilbao?
“El ACUSADO.	No vivia en la Calle Bilbao. Yo solia pasar alii a la casa de un amigo con frecuencia.
“Sr. FISCAL.	Antes de ocurrir este suceso en que Ud. estuvo emborrachandose?
“El ACUSADO.	Si, senor; antes de aquella ocasion.
“Sr. FISCAL.	Es todo.” (Pp. 21, 22, rec.)

According to the Solicitor-General the foregoing testimony tends to
show that defendant-appellant was a habitual drunkard. We do not think
however that the same clearly indicates that the appellant was a
habitual drunkard. For this reason, we must presume that intoxication
was not habitual but accidental. It should therefore be considered as a
mitigating circumstance in favor of the defendant. (U. S. vs. Fitzgerald, 2 Phil., 419, 422; U. S. vs. Recano, 4 Phil, 91, 93; People vs. Cruz, 49 Phil., 163, 164.Vide also, I Viada, Codigo Penal [1890], p. 223.)

We find no merit, however, in the contention that the
defendant-appellant did not intend to commit so grave a wrong as that
committed. The appellant was armed with a dagger and with it struck his
victim thrice. He must have intended the result of the aggression and
is liable for the consequences. Besides, by his plea of guilty, the
appellant admitted the allegation in the information that “with the
decided purpose to kill, (he) did then and there willfully, unlawfully
and feloniously attack, assault and wound Sy Ha with a dagger, thereby
inflicting upon him three wounds, which directly caused his death.” (U.
S. vs. Barba, 29 Phil., 206-208; U. S. vs. Santiago, 35 Phil, 20, 22; People vs. Be Jesus, 63 Phil., 760.)

The resolution of the third and fourth assignments of error will
depend on whether or not the defendant upon the facts related in the
information should be convicted of the complex crime of attempted
robbery with homicide under article 297 of the Revised Penal Code or of
simple homicide under article 249 of that Code. Perusal of the
information will show that the only averment of fact imputing attempt
to commit robbery to the defendant is the allegation that the defendant
after receiving five centavos from the deceased, Sy Ha, “by means of
intimidation demanded some more money” from the latter. Before that
time, there was, to paraphrase the information, “felonious asking”
which term is devoid of any definite meaning. Even if we were to
consider the demand made by the accused by means of intimidation as the
commencement directly by overt acts of the commission of the crime of
robbery, which consists in the taking of personal property animus lucrandi under
the circumstances mentioned in article 293 of the Revised Penal Code,
it might have been that the refusal of the deceased to give more money
to the defendant was due to the fact that he had no more money. At any
rate, we find the allegations in the complaint insufficient to warrant
conviction for attempted robbery with homicide and we uphold the
contention of counsel de oficio and find the accused guilty of simple homicide (art, 249, Revised Penal Code) with the aggravating circumstance of reiteration,
having been previously punished for robbery and theft (art. 15, No. 10,
Revised Penal Code), and the mitigating circumstances of intoxication
(art. 15, Revised Penal Code) and voluntary confession of guilt (par.
7, article 13, Revised Penal Code); and, in accordance with paragraph 4
of article 64 of the Revised Penal Code, in relation to the
Indeterminate Sentence Law, sentence him to not less than seven years
of prision mayor and not more than twelve years and one day of reclusion temporal,
with the accessory penalties, and to indemnify the heirs of the
deceased in the amount of P1,000, and to pay the costs. The judgment of
the lower court is to this extent modified. So ordered.

Avancena, C. J., Villa-Real, Abad Santos, Imperial, Diaz, and Concepcion, JJ., concur.