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

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 idemnify the
heirs 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 volunrtarily 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 accused-appellant 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 genera] scale.”

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

“(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 said 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’s 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 self-defense.

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 discussion which at times became 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 the Nierras faction, due to the insistences of the
former (Napalit) that said applications of the two 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 to 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 Corpin 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 prision 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, due 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.