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[PEOPLE v. ALFREDO ARAQUEL](https://lawyerly.ph/juris/view/c347f?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. L-12629, Dec 09, 1959 ]

PEOPLE v. ALFREDO ARAQUEL +

DECISION

106 Phil. 677

[ G. R. No. L-12629, December 09, 1959 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. ALFREDO ARAQUEL, DEFENDANT AND APPELLEE.

D E C I S I O N

GUTIERREZ DAVID, J.:

This is an appeal by  the Government  from an order of the Court of  First Instance of Ilocos Sur, dismissing the information for homicide filed against the accused Alfredo Araquel  on the ground of double jeopardy.

The record shows that on January 30, 1955, the acting chief  of police of Narvacan,  Ilocos Sur, filed  with the justice of the peace court of that municipality a complaint for  homicide against Alfredo Araquel  accusing him of having hacked and killed Alberto Pagadian with  a bolo. More than a year and a  half later, or on July 3, 1956, while said complaint,  for reasons not  stated, was still pending in the justice of the peace court, the  chief of police of Narvacan moved for the amendment thereof, alleging that upon reinvestigation of the facts he found that the crime committed by the accused was not homicide as charged in the original complaint but that of homicide under exceptional circumstances  as provided for in article 247 of the Revised Penal Code.   Finding the motion to be well taken, the justice of the peace court, on July 16,  allowed the filing of the amended complaint which charged the accused with."the crime of HOMICIDE UNDER EXCEPTIONAL CIRCUMSTANCES defined and punished under Article 247 of the Revised Penal Code."  That same day, the accused was  arraigned under the amended complaint.  And as he entered a plea of "guilty", the justice of the peace court, also  on that same day, sentenced him to suffer the penalty of destierro for a period of one year to any place not within the radius of at least 25 kilometers  from the municipal building of Narvacan,  Ilocos Sur.

During the service of the  sentence by the accused, the acting Provincial Fiscal of Ilocos Sur was  informed of the case through the Department of Justice to which the private  prosecutor had lodged a  complaint.  And after conducting an investigation, the said acting provincial fiscal, on February 16, 1957, filed with the Court of First Instance of the province an information against the accused Alfredo Araquel  charging him with homicide as defined and penalized under Article 249 of the Revised Penal Code for the killing of Alberto Pagadian.

On July 9,1957, the accused moved to quash the information  on the ground of double jeopardy, invoking the previous charge  against him for homicide under exceptional circumstances and the subsequent  sentence passed upon him by the justice of the Peace Court of Narvacan, Ilocos Sur.  The fiscal opposed the motion, but the trial court, in its order of July 18, 1957, sustained the plea of double jeopardy  and  dismissed the information.  Hence,  this appeal.

The plea of jeopardy made by the  accused  was, to our minds, erroneously sustained by the  lower court.

 In order that  a defendant may legally be placed in jeopardy, one of the necessary and indispensable conditions is that he should have been tried before a court of competent jurisdiction.   (Sec.  9, Rule 113, Rules of  Court.)   The court below,  in  upholding  the plea  of double  jeopardy, held that the Justice of the  Peace Court  of  Narvacan, Ilocos Sur, had jurisdiction  to take cognizance of the complaint for "homicide  under exceptional circumstances  defined and punished under Article 247 of the Revised Penal Code," on the theory that "the act defined" in that article "is  a felony" which is penalized with destierro  and,  consequently, falls under the jurisdiction of the inferior court, following the ruling laid  down  in the case of Uy  Chin Hua vs.  Dinglasan, et al.,  (86 Phil., 617; 47 Off. Gaz. No.  12, Supp., p. 233).

There can of course be no question that, under the rule enunciated in the case of Uy Chin Hua vs. Dinglasan et al., supra, offenses  penalized  with  destierro  fall  under  the jurisdiction  of the justice of the peace and   municipal courts.   (See also De los  Angeles  vs.  People,  103Phil., 295.)   That  rule, however, cannot  be  made to apply  to the  present case, for it  is  apparent  that Article 247  of the Revised  Penal Code does  not  define a crime distinct and separate from homicide, parricide, or murder, as the case may be, depending, in so far as those crimes are concerned,  upon the relationship of the victim to the killer and the manner by which the killing  is committed.   The article in question  reads:
"Art. 247. Death or physical injuries inflicted under exceptional circumstances.-Any legally  married person  who, having surprised his spouse in the act of  committing sexual  intercouse with another person, shall kill any of them or both of them in the act or immediately thereafter,  or shall inflict upon them any  serious physical injuries,  shall suffer the penalty  of destierro.

"If he shall  inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

"These rules shall be  applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducers,  while the  daughters are living with  their parents.

"Any person who shall promote  or facilitate the prostitution of his  wife or daughter, or shall otherwise  have consented  to  the infidelity of the other spouse, shall  not be entitled to the benefits of this article."
This article is found under  Section One of Chapter  One, Title Eight of Book Two of the Revised Penal Code.   Title Eight  refers to Crimes against Persons, Chapter One is entitled Destruction to Life and Section One thereof treats of the crimes of parricide, murder and homicide.

As  may readily be seen from its provisions and its place in the Code,the above-quoted article, far from defining a felony, merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment to a legally  married person  or parent who shall surprise his spouse or daughter in the act of committing sexual intercourse with another, and shall kill any or both of them in the act or immediately thereafter, or shall inflict upon them any serious  physical injury.   Thus, in case of death or serious physical injuries,  considering the enormous  provocation  and his  righteous  indignation, the accused who would otherwise be criminally liable for the crime of  homicide, parricide, murder, or serious physical injury, as the case may  be is  punished only  with destierro.  This  penalty is mere banishment  and, as held in a case, is intended more for the protection of the accused than  a punishment.   (People .vs. Coricor, 79 Phil., 672.) And  where physical injuries  other than  serious are  inflicted, the offender  is exempted  from  punishment.  In effect, therefore, Article  247, or the  exceptional circumstances mentioned therein, amount to an exempting circumstance, for even where death or serious physical injuries is inflicted, the penalty is so greatly lowered as to result to no punishment  at all. A  different  interpretation,  i. e., that  it defines and penalizes a  distinct crime, would  make the exceptional circumstances which practically exempt the accused from criminal liability  integral elements of  the offense, and thereby compel  the prosecuting officer to plead, and,  incidentally, admit them, in the information.  Such an interpretation would be  illogical if not absurd, since a mitigating and much less an exempting circumstance cannot be  an integral element of the crime charged.  Only "acts or omissions ... constituting the offense"' should be pleaded in a complaint or information, and a circumstance which mitigates criminal liability or exempts the  accused therefrom, not being  an essential element of the offense charged but  a matter of defense that must be  proved to the satisfaction of the court need not be pleaded.  (Sec. 5, Rule 106, Rules of Court; U. S. vs. Campo, 23 Phil., 368.)

That the article in question defines no crime is made more manifest when we consider that its counterpart in the old Penal Code (Article 423) was found under the General Provisions  (Chapter VIII) of Title VIII covering crimes against persons.   There can, we think, hardly be any dispute  that as part  of  the general provisions, it  could not have  possibly provided for a  distinct and separate crime.

We also  note  that under  Republic  Act  No. 296, the jurisdiction of the justice of the peace and  municipal courts,  as enlarged, extends only to "assaults  where the intent to kill is not charged or evident at the trial."  (Section 87[c]).  A.fortiori, where the intent to kill  is evident as in  cases  of  homicide  under the exceptional circumstances provided in  Article 247 of the Revised Penal Code the case must necessarily fall beyond the jurisdiction of the inferior courts.  An  absurd situation would, indeed,  be created  if the justice of the peace courts could exercise jurisdiction over a case involving an actual killing, when they lack jurisdiction to try even a case of slight physical injury where the intent to kill was evident.  Such could not have been the intendment of the law.

It may  not be amiss to state here that  the killing under exceptional circumstances  under both the old (Art. 423) and Revised Penal Code (Art. 247) had invariably been tried before the Courts of First Instance under an information charging  the  accused  with either homicide,  parricide, or murder.  (See U. S. vs. Vargas, et al., 2 Phil,, 194; U. S. vs. Melchor,  2 Phil., 588; U. S. vs. Posoc, et al., 10  Phil., 711; U. S. vs. Alano, 32 Phil., 381;  U./S. vs. Verzola, 33 Phil., 285; People vs. Loata, 46 Phil., 392; People vs. Bituanan, 56 Phil., 23;  People vs. Zamora de Cortez, 59  Phil., 568; People vs. Gonzales, 69 Phil., 66; People vs. Dumon, 72 Phil., 41;  People vs. Coricor, 79 Phil., 672; People vs. Sabilul, 89 Phil.,  283; 49  Off.  Gaz., 2743.)  In  all the above-cited cases, the accused merely invoked the privilege or benefit granted  in Article 247 of the  Revised Penal Code or Article 423 of the old Penal Code.

We, therefore, conclude that Article 247  of the Revised Penal Code does not define and provide for a specific crime, but grants a privilege or benefit to the accused for the killing of another  or  the infliction of serious physical injuries Hinder the circumstances therein mentioned.  Consequently,  a complaint  or  information charging homicide under  the exceptional circumstances  provided  in  Article 247 must fall  under the jurisdiction of the Courts of  First Instance, the offense charged being actually that of homicide.  The fact that  the  exceptional circumstances are also pleaded as was  done in the amended  complaint filed with the Justice of the Peace Court of  Narvacan would not affect the nature of the crime charged.  For they are not integral elements of the crime charged but are matters which  the accused  has to prove in order to warrant the application of the  benefit granted  by the law.  As unnecessary and immaterial averments to the crime charged, they may be  stricken  out as surplusage and still leave the offense fully  described.

Conformably to the above findings, we hold that defend ant was not tried by a court of competent jurisdiction when he was arraigned  before the Justice of the Peace Court of Narvacan upon  the amended  complaint for "homicide under exceptional circumstances" filed against him by the chief of police of the municipality, and consequently, has not legally been placed in jeopardy in  the present  case.

Wherefore, the order appealed from is set aside and the case remanded to the court  a quo for further proceedings. No special pronouncement as to costs.

Bengzon, Labrador, and Endencia, JJ., concur.
Bautista Angelo and Barrera, JJ., concur in the result.




CONCURRING

PARAS, C. J.,

I concur in the result for the same reasons set  forth in my concurring opinion  in  the case  of Uy  Chin Hua,  vs. Hon. Judge  Rafael Dinglasan,  supra, promulgated  June 30, 1950, which reads as follows:
"In  the scale of penalties provided in  article 71  of  the Revised Penal Code, as  amended by Commonwealth  Act  No. 217, the  two penalties  successively lower than arresto mayor is destierro  and arresto menor.  Under article 25, destierro is classified as a correctional  penalty and, under article 27, its duration is from 6 months and 1 day to 6 years.  Upon the other hand, the duration, of arresto mayor, classified also as a correccional penalty  (Article  25), is from 1 month  and  1 day  to 6 months (Article 27).   There can be no question that, pursuant to the Judiciary Act of 1948 (Republic Act No. 296), the consummated  offense of corruption  of public officials, penalized with  arresto mayor in its medium and maximum periods, or from 2 months and 1 day to 6 months, comes within the original jurisdiction of the justice of the peace or municipal court.  Under article 51,  the penalty for an  attempt to commit the  offense of corruption of public officials is two degrees lower than arresto mayor in  its  medium and maximum periods. Said penalty if the scale in article 71 of the  Revised Penal  Code, as amended  by Commonwealth Act No. 217, is to be followed to the  letter is destierro in its minimum and medium periods, or from  6 months and 1 day to 4 years and 2 months, with the  result that an attempt would fall, pursuant also to the Judiciary Act of 1948, under  the original jurisdiction of the Court of First Instance.  This is the theory of counsel for respondent Judge.

"According to  this  theory, an attempted offense is penalized  with a  greater penalty than the  consummated offense and is to be  tried by a  higher court  than  that which will  try  the  consummated offense. This  absurd result  would not  have been  contemplated by the  lawmakers in  amending article 71 of the  Revised Penal Code  and  should accordingly  be  avoided.

"An attempt  to commit a felony is certainly lower  than  the consummated felony, and this is the reason why article 51 of the Revised Penal Code specially provides that a penalty lower by two degrees than that prescribed by  law for the consummated felony shall be imposed upon the principals in an attempt to commit said felony.  If this fundamental provision is, as it should be, given effect, the penalty for the attempted offense of corruption of public officials, which is a penalty lower by two  degrees than arresto mayor in its medium and maximum periods (from 2  months and  1 day to 6 months), is arresto menor in it minimum and medium periods  (from 1 day to  30 days).  The penalty for said  attempted offense should not be taken from  destierro, because the duration of this penalty is from 6 months and 1 day to 6 years, and is therefore equal to and  co-extensive in  duration with prision correctional,  a penalty higher than arresto mayor in the scale  provided by  article 71 of the Revised Penal Code, as amended by Commonwealth  Act No. 217.  Although destierro  may not be an "Imprisonment", it is nonetheless a "deprivation of liberty"  (People  vs. Abilong, 82  Phil., 172; 46 Off. Gaz., 1012).

"It is noteworthy  that before  article 71 was amended by Commonwealth Act  No. 217, the scale of penalties from  which a lower or higher penalty was taken, was that provided by article 70,  under which the penalty lower than arresto mayor was arresto menor. Destierro  was  not included.  The obvious  reason is  that destierro is an exceptional  penalty, prescribed as a principal penalty only in two  cases  (articles 247  and 334)  and as an additional penalty only in one case (article 284).  The  exceptional character of destierro is recognized in the  fact that although it  is classified as a correctional penalty having a duration  of from 6 months and 1 day to 6 years, in  parity with prision  correctional,  it is placed in the scale fixed in article  70 of the Revised  Penal Code, as amended by Commonwealth  Act No.  217, below arresto menor, as regard  severity and for purposes of successive service of sentence; and in the scale provided  in article 71, as amended by Commonwealth Act No.  217, it is  placed below arresto mayor.  But, as heretofore stated,  if the scale in article  71 is followed literally, we shall have the unthinkable and absurd situation that the consummated offense of corruption  of public officials  is penalized with  arresto mayor in its  medium and maximum periods (from 2 months and 1 day to  6 months) originally triable in the  justice of the  peace or municipal court, whereas the lower offense of attempted corruption  of public officials is penalized with destierro in its minimum and medium periods  (from 6 months and 1  day to 4 years and 2  months) and originally triable  in the Court of First Instance.  To avoid this absurdity, I  am constrained to hold that the penalty of destierro is to be considered only when it is  specifically  imposed and is to be disregarded in  the  scale provided  in article  71.

"It  is  true  that in the case  of  People  vs.  Ng  Pek, 81 Phil., 562; 46 Off.  Gaz., 360, decided  on October 2,  1948,  we  held that the penalty lower  by  two degrees  than  arresto  mayor in  its medium and maximum  periods  is destierro  in its  minimum  and medium periods;  but in said case the point decided in the  case at bar was not actually raised  and passed upon.  Upon  the other hand,  in the case  of Rivera vs. Geronimo, 43 Off. Gaz., 841, decided on July 22, 1946t we  ruled that tine penalty lower by two degrees than prision correctional in its  minimum  and medium  periods is arresto mayor  in  its  minimum  period,  the  penalty of  destierro having been disregarded."



DISSENTING

MONTEMAYOR,  J.,

The facts,in this case are correctly stated in the majority opinion, the  pertinent portion of  which  I am reproducing below for purposes of ready reference:
"This is  an  appeal by the Government from an  order of the Court of First Instance  of Ilocos Sur, dismissing the information for homicide  filed against the  accused Alfredo  Araquel on  the ground of double jeopardy.

"The record shows that  on January 30,  1955,  the  acting chief of police of Narvacan,  Ilocos Sur,  filed  with the  justice  of the peace  court of that municipality a  complaint for homicide against Alfredo Araquel accusing him of having hacked and killed Alberto Pagadian with a bolo.   More than  a year and a  half  later, or on July 3,  1956, while said complaint, for  reasons not stated, was still pending in the justice of  the peace court, the. chief of police of Narvacan moved  for  the amendment  thereof,  alleging that upon reinvestigation of the facts he found that the crime committed by the  accused was not  homicide  as charged in the original complaint but that of homicide  under exceptional circumstances  as provided for  in article  247 of the Revised Penal Code.   Finding the motion to be well taken, the  justice of the peace court,  on  July 16, allowed the  filing of  the amended  complaint  which  charged  the accused with "the  crime  of HOMICIDE UNDER  EXCEPTIONAL  CIRCUMSTANCES defined and  punished under  Article  24? of  the Revised Penal  Code."  That same day, the accused was  arraigned under  the amended complaint.   And as he entered a plea of 'guilty', the justice of the peace court, also on that same day,  sentenced him to suffer  the penalty  of destierro for a period of one year to any place not within the  radius  of at least 25 kilometers from the municipal building of  Narvacan, Ilocos Sur.

"During the  service of the sentence by the accused, the acting Provincial Fiscal of Ilocos  Sur was informed of the case through the Department of Justice  to  which the private  prosecutor had lodged a complaint. And after conducting an  investigation, the said acting provincial fiscal,  on  February 16,  1957, filed with the Court of First  Instance of the province an information against the accused Alfredo Araquel charging him with homicide as  defined and penalized under Article 249 of the Revised Penal Code for the killing of Alberto  Pagadian.

"On July  9,  1957, the  accused moved to quash the information on the  ground  of double  jeopardy, invoking the previous  charge against him for homicide under  exceptional circumstances and the subsequent  sentence passed upon him by the Justice of  the Peace Court of Narvacan, Ilocos Sur.   The  fiscal opposed  the motion, but the trial court,  in its order of July 18, 1957, sustained the plea of double jeopardy and dismissed the information.  Hence, this appeal."
I just want to add that the reasons  given by the Chief of  Police  in  moving for the amendment  of the  original complaint for homicide were:
"1. That upon a careful reinvestigation of the facts and evidence in the above-entitled case, the undersigned found from all  the declarations on  record as well as the  declarations of Pvodolfo Cachola (Annex  A); Emilia Kabanal  (Annex  B)  and Laureana Torqueza (Annex C) that the crime committed by the accused is not Homicide as charged in the original complaint but that of  Homicide under exceptional  circumstances  defined and punished under Art. 247 of the  Revised  Penal Code;

"2. That in the face of the testimony of the witnesses available, the undersigned believes that since he cannot possibly have evidence to sustain  the  prosecution of the accused under the original complaint, the interest of justice require  that the complaint be amended to conform with the known facts and  evidence available." (Annex "B")
It may be  of interest to know that the original complaint for homicide was filed only  by the Acting Chief  of Police, whereas the  amended complaint was filed by the regular incumbent Chief of Police.

The majority  opinion readily admits that offenses penalized with destierro fall under the jurisdiction of the Justice of the Peace and Municipal  Courts, under the doctrine laid down in the case of Uy Chin Hua vs. Dinglasan  (47 Off. Gaz.,  No. 12, Supp. December 1951; p. 233), and more recently, in  the  case of  De  los  Angeles  vs.  People  103 Phil.,  295 thereby  making it unnecessary in this dissent to  prove and establish  that rule.  However,  in  spite of said admission that  the Justice of the  Peace Court  has jurisdiction   over   offenses   penalized   with  destierro, in the present case, it holds that the Justice of the Peace Court of Narvacan, Ilocos Sur, had no jurisdiction over the case, although according to the facts, the killing should be penalized with destierro.  The reason given is that "Article 247 does not define a crime distinct and separate from homicide, parricide or murder ***"and that "far from defining a felony, merely provides or grants a privilege or benefit amounting practically to an exemption from an adequate punishment ***. The majority contends that the case should have been tried in the Court of First Instance as a case of ordinary homicide, and that if the defendant proved the special circumstances defined in Article 247, the said court could and should impose the penalty of destierro.  I regret to disagree.

Article 247 reads thus:
"Art. 247. Death  or  physical injuries inflicted under  exceptional circumstances. Any leg-ally married person who, having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter,  or  shall inflict upon them any serious physical injury shall suffer the penalty of destierro.

"If  he shall inflict upon them physical injuries  of any  other kind,  he shall be exempt  from punishment.

"These rules shall be applicable, under the  same  circumstances, to parents with respect to their daughters, under eighteen years of age and their seducers, while the daughters are living with their parents.

"Any person who shall  promote or facilitate the  prostitution of his wife or daughter, or  shall  otherwise have consented to the infidelity of  the other  spouse shall not be entitled  to the benefits of the  article."
To me, the killing under Article 247 of the Revised Penal  Code is  a special crime, namely, that of a person who kills under certain, circumstances.  It has some similarity to the killing on the occasion of a robbery or in a tumultuous affray, in which case, the prosecuting attorney should state clearly  the  facts  and  circumstances  under which a man  is killed.  So is the crime  of rape when committed  on  the  occasion of  a robbery.   It  should  be described  by  the prosecution  not as  an  isolated  crime against chastity, but as a crime committed on the occasion of robbery, thereby making it a special offense.

 I cannot  agree that Article 247 of  the  Revised Penal Code, according to the majority opinion, "merely provides or  grants  a privilege or benefit amounting  practically to an exemption from an adequate punishment".  If that were so, then its provisions have no right or business to be under Title VIII (Crimes Against Persons), and Chapter 1 thereof (Destruction of Life), found almost  at the end of the Revised  Penal Code, but should have been placed under Chapter 2 of Title  I, entitled, "Justifying Circumstances and Circumstances which Exempt  from Criminal Liability," found at the beginning of the same Code.   Under Article  11 of said Chapter 2, Title I, we  find that the following persons  do  not  incur any  criminal liability: anyone who acts in defense of his person or  rights under certain circumstances,  or  anyone who  acts in  defense of the person or rights of his spouse, ascendants  or decendants, etc.,  and  even of strangers, under  certain circumstances.  Following the theory  of the  majority opinion, the provisions of Article 247  of the Revised Penal  Code should have been placed under or added to said cases, in the following manner:  Any  legally married person who in defense of his honor and the sanctity of his home or family should kill his spouse or the person caught by him in sexual intercourse with said  spouse, or both of them.
However, that has not been done, and as  already stated, Article 247 is placed under  Title VIII, entitled, "Crimes Against Persons,"  and found between  Articles 246  (parricide)  and 248 (murder),  and Article 249  (homicide).

Again, the  majority says  that Article 247 does  not define a felony.  Does it not?  I  hold  that it does.  It is a separate article of the Penal Code, different and distinct from, say, Article 246 (parricide)  or Article 248 (murder) or Article 249 (homicide), although they are  all under the same Title  VIII, Chapter  1 and  Section 1  of  the  Code. What  better proof that it defines a  felony is there than that Article 247 has  its  own title "Death  or Physical Injuries  Inflicted  under Exceptional   Circumstances"; it indicates and mentions the person included  in and  liable under its provisions; it specifies the circumstances  under which the death is  caused by him,  and declares the penalty imposable on  him?   To me, the definition of the crime is complete and  unmistakable.   It  no less defines a  crime than  does Article 248  (murder) which punishes a person who kills another  who is  not his father, mother,  child, spouse, etc., under any of the following  circumstances, such as, treachery, promise of reward, evident premeditation, etc.

In  my opinion, Article  247 is considered and classified as a  special crime, and what is more, the corresponding penalty  is attached to it.  Consequently, persons may be charged with  its violation.

Article 247  is quite similar  to Article  251 entitled, "Death Caused in  a Tumultuous Affray," which reads as follows:
"ART. 251. Death caused in a tumultuous affray. When, while several persons, not  composing groups organized for the common purpose of assaulting and attacking each other reciprocally,  quarrel and assault each other  in a confused and  tumultuous manner, and in the course of the  affray  someone  is killed, and it cannot be ascertained who  actually killed  the deceased, but  the person or persons who inflicted serious  physical injuries can be identified, such person  or persons shall be punished  by prision mayor."

"If it  cannot be determined who inflicted the serious physical injuries on the deceased,  the penalty of prision correctional in its medium and maximum periods shall be imposed upon all  those who shall have used violence  upon the person  of the victim."
This article, like Article 247, also falls  under Title VIII (Crimes Against Persons), Chapter 1 (Destruction of Life), and the same Section 1.  Will  the majority contend and claim, as it does as regards Article 247, that Article 251 does not define  a felony but merely extends  a mitigating circumstance and imposes a lesser penalty, and that consequently,  one involved  in or falling  under its provisions (Death Caused in a Tumultuous Affray) should be charged with homicide under Article 249, and  that it is up to him to invoke and prove the circumstances mentioned in Article 251, even when the prosecution  already knows  those circumstances to have attended or  surrounded the  death of the deceased? If the prosecution from its investigation is convinced that the  accused comes under the provisions of  said Article 251, in that he inflicted serious physical injuries on the person  killed,  it should charge him with causing "death in  a  tumultuous affray". It  should  not charge  him with, say, homicide and let or rather compel him to  prove the facts already known to the prosecution, namely that he  was among several persons, not composing groups  organized for the common purpose of assaulting or attacking each other, but that he was  engaged in  a quarrel in  a confused and tumultuous manner, and that all he did was to inflict serious physical  injuries on the  deceased. For the prosecution to suppress facts known to  it,  which facts are favorable to  the accused, and file a charge of, say, homicide,  and compel the defendant  to  prove those facts would not be playing fair and square.  That would involve mental dishonesty.  The duty of the Government is  not to prosecute  and  convict one of  a crime  higher  and more serious than that actually committed,  but rather  to charge the accused with what he had actually committed and the circumstances surrounding said commission, this, to serve the interest of justice.   Otherwise, the Government would be undertaking and promoting persecution instead of prosecution.

If in a case,  the  Fiscal,  after his investigation, is convinced that the accused abducted a woman with her consent, he should file a charge for abduction with consent,, under Article 343 of  the  Revised Penal Code  (Abduction  with Consent),  penalized with prision correcional  in its  minimum and medium period and not with forcible abduction, punished with reclusion temporal, and leave it to the defendant to prove consent of the girl.  Again, if an accused is found to have had sexual intercourse with a girl and the Fiscal from his investigation knows that the girl consented to  said  intercourse  because of deceit, promise  of marriage,  etc.,  then he should charge said accused with simple seduction under Article 338, penalized only  with arresto mayor and not with rape under Article 335, Revised Penal Code, punished with reclusion  temporal, and leave  it to said accused to  prove what the Fiscal already knew that sexual  intercourse was not committed with force or intimidation, but rather with the consent of the girl.  There should be sincerity and candor in the actuations of a prosecuting  attorney.  In the present case, the Chief of Police of  Narvacan where  the crime was  committed, who being a resident of the place, was in a better position to know the real  facts of the case, after his investigation, found as a matter of fact  that the accused killed the deceased when  he found  him in actual sexual intercourse with his (defendant's) wife.  This must have been known to  the Fiscal who also must have known that the defendant had already been  charged with  causing death under exceptional circumstances under Article 247 of the Revised  Penal Code,  found guilty under said article, and had served sentence; and yet, the prosecution in this case filed a charge of homicide, omitting  or suppressing the facts  and circumstances  surrounding the killing.  To me, that was  wrong, unjust, and unfair.

I hold that Article 247 clearly  defines a crime and  attaches to it the  corresponding penalty.  It is complete in definition and in the fixing of punishment, like parricide, murder and homicide, which  like them, is included in the same Title VIII, Chapter  1, and  Section 1 of the Revised Penal Code.  It is not a mere exemption or mitigating circumstance which are included in a distinct and separate portion of the Revised Penal Code, namely, Title I, Chapter 2 and Chapter 3.

Continuing with its theory that the  provisions of Article  247 only mention an exempting circumstance, the majority opinion says that it is a matter of defense on  the part  of the  accused which he has to  prove, and  that to consider said article as defining and penalizing  a  distinct crime, then the  prosecuting officer would be  obliged to plead and admit the said circumstance  in his information, which would be illogical if not absurd, since a mitigating or exempting circumstance cannot be an integral  element to the  crime charged.  In my opinion, therein lies  the flaw  in the  majority's theory, all because its premise is incorrect.  The reason why justifying circumstances  are a matter of defense is because they involve several elements which need  proof.  For  instance, in the matter  of self-defense, the accused  must prove that there was unlawful aggression, that  the  means  employed  by him to  prevent or repel it were  reasonable and necessary, and that there was lack of sufficient provocation on his part.  All these are matters  only known, to the accused himself and which he must establish to the satisfaction of the court in order to be exempted from criminal liability.  However, where the accused is a married man and he  surprises his wife and the deceased in the  act of sexual  intercourse and he kills  anyone of them or both of them, there  is  nothing complicated  or difficult of  proof  of these  circumstances and when the prosecuting official knows it,  as he did in this case, there  is nothing illogical, much  less absurd, in his sincerely, ingenuously and candidly including them in his complaint, so as to fall under the provisions of Article 247, all in the interest of justice.  And knowing that the penalty attached to it is  only destierro, he should file it in the Justice of the Peace Court or Municipal Court, as did the Chief of Police in this  case.  Why should a person accused of killing under Article 247 be compelled to submit to a mere preliminary investigation by the Justice of the Peace  Court and  later be sent up to the Court of First Instance, with all the attendant expense and trouble and worry, when after all, he could easily prove the circumstances under which he killed  the  deceased, because the very Chief of Police and the Fiscal and the witnesses for the prosecution  admit and know it?  We should  make the administration of justice as simple, speedy and inexpensive as  possible, and fair to the accused.

Here, the Chief of Police who presumably acted in all sincerity and according to his conscience, filed an amended complaint according to the facts found by him.  The Justice of the Peace knowing that the penalty attached to the criminal act committed under said circumstances  was penalized  with  destierro,  which according  to  the  majority opinion itself fell under  his jurisdiction,  took cognizance thereof and  after court proceedings, rendered judgment.
The accused  served the sentence  for  according to the appealed  order of the trial court in this case, at the time said decision was rendered, defendant's service of sentence had been  completed.  But the tragedy and the misfortune that visited the  unfortunate  accused evidently had not ended, because now here comes the Government itself, who invoking  a supposed technicality .as to  jurisdiction, seeks to  disregard and sweep away all  the  court  proceedings so far held, and again indicts and, in my opinion, harasses the said unfortunate defendant with  another prosecution, and all for what?  To try him for the same offense, this time in the Court of First Instance,  and if found guilty, which of  course, the defendant himself admits  that he committed  the act, to  impose  the same  penalty of  destierro and for the accused to serve it all over again.   I do not believe that is justice.

But one  might claim  that there could have been fraud, collusion  or connivance  in the filing of the amended complaint in the Justice of the Peace Court, the arraignment of the accused on said amended complaint? and his sentence thereon.  However, the record of the  case fails to  show any such fraud,  connivance or  collusion.  On this  point, the trial court in its order of dismissal, has this  to say:
"There being no showing  that the first conviction in the Justice of the Peace Court was  procured, through fraud, connivance  or collusion of the accused, it would not seem pertinent, to  discuss the contention of the Fiscal that the rule of double jeopardy could not apply if the  first conviction was secured under those circumstances."
Furthermore,  the judgment of  the  Justice of  the  Peace Court in the  original  case,  reproduced  in the  order  of dismissal of the  trial court, in  part reads thus:
"A  motion to  amend the  complaint was  filed by the Chief of Police of Narvacan, Ilocos Sur, attaching  thereto annexes "A", "B" and "C", together with the Amended  Complaint.

"The motion was set for hearing on July 9, 1956 on  which date Atty. Constante R. Ayson  appeared as private prosecutor in  collaboration with the Chief of Police. Atty. Francisco D. Villanueva appeared as  a  defense counsel.

"The counsels agreed to  postpone the consideration of the motion filed by the  Chief  of  Police  for July 16, 1956 at  which time the private prosecutor manifested to the Court that he will file his objections to the motion to amend the complaint filed by the  Chief of  Police.

"On July 16, 1956 when the case was heard the private prosecutor did not appear  and the Chief of  Police filed a motion  to correct a clerical error committed in  the complaint."   (Italics supplied)
It  is, therefore, clear that considering that there was a private prosecutor representing the offended party in the first  case;  that although said private  prosecutor at first manifested his intention to file an objection to the motion to amend  the complaint, nevertheless, when hearing  on said amendment  of  the  complaint was held, said private prosecutor  did not  appear, showing that he no longer objected to the amendment, or that  he acquiesced in said amendment, it is safe to say that there has been no collusion,  connivance or fraud in the  case.

The unfortunate defendant here has more than sufficiently suffered, what with the proven infidelity of his wife, the attack upon his honor, the  wrecking of his home, his subjection to a criminal prosecution and the service of the penalty  imposed  upon him.  In my opinion, the ends of justice have been more than served.  I agree with the trial court in  dismissing  the  second complaint filed  by the Chief of Police on the ground of double jeopardy.

For the  foregoing reasons, I  dissent.

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