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[ GR No. L-13678, Nov 20, 1959 ]



106 Phil. 496

[ G.R. No. L-13678, November 20, 1959 ]




In the  Court of  First Instance of  Surigao,  appellant Moises Cubelo was charged with the crime of  illegal fishing with explosives, allegedly  committed as follows:
"That on or about the 7th day of May, 1955, within the jurisdictional waters of the municipality and province of Surigao, Philippines, and within  the jurisdiction of this Honorable  Court, the said  accused did then and there willfully, unlawfully and feloniously explode one stick of  dynamite without permit to do so as a result of which a certain  kind of fish locally called tamban valued  at P10.00 was  disabled, killed  and/or stupefied in violation  of Act 4003, as amended  by Commonwealth Act No. 471 and further amended by Republic Act No. 462."
He was arraigned on March 25,1957, the information being read and  translated to him in the local dialect.  To the charged,  he  pleaded  guilty,  whereupon, the. trial  court declared him guilty of illegal  fishing with the  use of explosives as defined in Act  No.  4003, as amended, and considering his plea of guilty as a mitigating circumstance, sentenced  him
"**  *  to undergo  the indeterminate penalty of one (1) year and six  (6) months, as minimum, to two  (2) years, as maximum, and to pay  a fine in the amount of P1,500, or to serve subsidiary imprisonment which shall not be more than one-third  (1/3) of the principal  penalty  or in any case to not more than one year; and to pay the costs."
However, in spite of his spontaneous plea of guilty, Cubelo appealed the  decision to the  Court of  Appeals  which certified the case to us on  the,  ground that it involved only questions of law.

Appellant contends  that  he  may  not be  convicted  of illegal  fishing with  dynamite because  the  information fails to allege the intention  to fish with explosives.

Act No. 4003, as amended by Commonwealth Act No. 471 and further amended by Republic Act No. 462, under which appellant was accused and convicted, reads as follows:

"Rep.  Act 462, par.  2 Any person  who shall use explosives m fishing in violation  of  the provisions of section twelve  of this  Act shall be punished by  a fine  of  not  less than one  thousand  five hundred  pesos nor more than five thousand, and  by imprisonment for not less than one year and six months nor more than five years, aside from the confiscation and forfeiture  of  all  explosives, boats, tackle, apparel, furniture, and other apparatus used in fishing in violation of said section  twelve of this Act." (Approved June 9, 1950)

Defendant  in  support  of  his contention, relies  upon the phrase  "use explosives in  fishing", claiming that in order to hold  him criminally liable, the information should make it  clear that  the explosives or  dynamite was used  in fishing  and not for any other purpose.   Republic Act No. 462 is but an  amendment of Section 76  of Act  No. 4003, providing the  penalty for violation of Section 12 of said Act.  The said Section 12 reads thus:  
"Section 12, Act 4003 The  use of dynamite or other explosives for the stupefying, disabling, killing or taking of fish or other aquatic animals,  or under water for any purpose except  in the execution of bona fide engineering work  and the destruction of wrecks or  obstacles to navigation, or the gathering  by any  means of the fishes or other  aquatic  animals stupefied, disabled  or  killed by the action of dynamite or other explosives shall be  unlawful, provided, that the use of mechanical bombs  for killing whales, crocodiles/sharks, or other large dangerous fishes, may be allowed, subject to the approval of the Sec.  of Agriculture  and Natural Resources and the Sec.  of Interior, and provided further, that the Sec. of Agriculture and Natural  Resources with the  concurrence of  Sec.  of  Interior,  may issue permits for the use of explosive in taking fish or other aquatic animals in limited numbers for scientific purposes only.  Permittees must be ready at all times to exhibit permits on demand by any peace officer or deputy authorized in Sec. 5 hereof to enforce the provisions of this Act."
The act charged in the information against Cubelo that he willfully, unlawfully and feloniously  exploded one stick of dynamite,  which explosion  resulted in disabling, stupefying  and  killing a  certain kind of  fish, known  as tamban valued  at ten pesos, comes under the  provisions of Section 12 and  par. 2 of Republic Act 462, above-quoted. Of course, the Fiscal filing the complaint, to  dissipate  all doubt, should or could have inserted the phrase "for the purpose of fishing", thereby  avoiding any need of interpretation,  including the reading  of the information, in connection with Section 12 of Act 4003.  But that Cubelo exploded the  dynamite  in order to  fish, there  can be  no doubt.  To assume that he exploded the  dynamite in the water just for fun, and that said supposedly innocent pastime unexpectedly resulted  in the  killing  of a large fish  valued at ten pesos, would  involve an  unreasonable presumption,  as  well  as  an  extraordinary  coincidence. People do not  usually  assume the  risk  of  handling explosives such as dynamite with its consequent dangers to human life, and waste the value  of  said explosives which could  otherwise be utilized for legitimate purposes, just for fun.  And fishes, like those called tamban, are not so abundant and always near the surface of  the sea that any explosion of  a stick of dynamite thrown at random, without  any purpose  other than  for fun, and  without aim or deliberation, could not but hit them as a target  with fatal results.  The theory of  appellant does  not appeal to the credulity of this Tribunal.

Moreover,  the information in the present case is entitled "Illegal Fishing with Explosives", so that  there could have been  no doubt  in the  mind  of appellant who was  then assisted by  counsel,  that he  was  being charged  with exploding dynamite for purposes of fishing illegally, this apart from  the fact that among  the  exhibits which the prosecution  was going to present in evidence to support the charge,  evidently confiscated from the accused at the time he was caught in the act of  fishing with explosives, and  which  were  listed in  the  information,  were  the following:
One (l) bag of dried fish
One (1) Goggles
One (1) fish nets
One (1) paddle, and
One (1) baroto
The last four articles clearly show that the accused was fishing.  And, as already stated, he pleaded guilty to the charge.  In  addition, the intent may be rightly presumed from the result of the act.  Cubelo exploded a stick of dynamite in the water and killed a large fish  valued at ten pesos.   The logical presumption is that the explosion was for the purpose of fishing, that is to say, to catch that big fish which at the time he knew was  near him or within the area where he threw the stick of  dynamite.

Appellant  also  claims  that  the trial  court committed error in ordering him to serve subsidiary imprisonment in case of insolvency in the payment of the fine, contending that Act No. 4003  fails to provide for such subsidiary imprisonment, and being a special law, it is not subject to the provisions  of the Revised  Penal Code.  The  second paragraph of Article 10 of said code provides that "this Code shall be supplementary to such laws, unless the latter should specially provide the contrary."  In the  cases of People vs. Dizon (G. R. No. L-8002, November 23,  1955), it has been  held  that  Articles 100 (civil liability)  and 39  (subsidiary penalty) are applicable  to offenses under special laws, citing the cases  of  People vs. Moreno (60 Phil., 178) and Copiaco vs. Luzon Brokerage  (66 Phil., 184).

In view of the foregoing, the  decision  appealed from is hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Bautista, Angelo, Labrador, Reyes, J. B. L., Endencia, and Gutierrez David,  JJ.,concur.