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[ GR No. 7321, Nov 05, 1912 ]



23 Phil. 368

[ G. R. No. 7321, November 05, 1912 ]




The  appellant,  Patricio  Campo,  was convicted in the court below of t crime of homicide as denned  and penalized in  article 404 of the  Penal Code, and  sentenced  to twenty years  of reclusion temporal  and the payment  of the costs of the proceedings.  The penalty prescribed by law was imposed  in its maximum degree because the trial judge was  of opinion that the  commission  of  the crime was marked with  the aggravating circumstances  of alevosia (treachery).

Accepting, as we do,  the findings of the court below as to the credibil of the witnesses, we are of opinion that the evidence of record leaves n room for reasonable doubt that the appellant unlawfully and treacherously (con alevosia) took the life of one Isidro Palejo, at the time and place mentioned  in  the information.  It is very clear  th that the  crime actually committed by the appellant, as disclosed  by th evidence, was that of asesinato (murder), which,  as  defined and penalized  in article 403 of the Penal  Code, is the  unlawful taking of life of another, other than parricide, when the act is marked by   any o the following qualifying aggravating circumstances: (1) With treachery (dlevosia);  (2) for a price or promise of reward; (3) by means of an inundation, fire, or poison; (4) with deliberate premeditation;  (5) wit by deliberately and inhumanly increasing the sufferings of the offended party.

The trial judge, nevertheless,  properly convicted the defendant of the of homicide, marked with the generic aggravating circumstance of treache {dlevosia),  and justified  his action in this regard on the ground that information upon which the  defendant was tried, he was charged, not  wi murder  (asesinato), but with  homicide (homicidio).

The action  of the trial  judge in this  regard  must  be sustained.  We invariably held that an accused person cannot be convicted  Of  a  highe offense than that with which he is charged in the  complaint or  informa on which he is tried.  It matters not how conclusive and convincing the evidence of guilt may be, an accused person cannot be convicted  in the courts of  these Islands of any offense, unless it is charged in the com or information on which he is tried, or necessarily included therein.  H right to be informed as to the nature of the Offense with which he is charged before he is put on trial, and to convict him of a higher offens than that charged in the complaint or information on which he is tried would be  and unauthorized denial  of that  right.  (U. S. vs.  S Phil.  Rep,, 143;  U.  S.  vs. Pascua, l Phil. Rep.,  631;  U. S. 4 Phil. Rep., 114; U. S. vs. Nery,  4 Phil. Rep., 158; U.  S.  Phil. Rep., 242; U. S. vs. Luzon, 4 Phil. Rep., 343; U. S. vs. 5  Phil. Rep.,  464; U. S.  vs. Torres, 5 Phil. Rep., 501; U. S. Santos, 5 Phil. Rep.,  565; U. S.  vs. De  Guzman, 8 Phil. Rep., vs. Rojo,  10  Phil. Rep., 369;  U. S. vs. Gellada,  3,5 Phil vs. Jeffrey, 15 Phil. Rep., 391.)

Perhaps, however, it should be observed that, when speaking in this connection of the offense charged in the complaint, we refer to the offe of which the court would  be justified in holding the defendant guilty o proof of the facts alleged in the body of the information.  For, except a very early case (U. S. vs. Dinsing, 1 Phil. Rep., 738), wherein view appears to have been taken, apparently without extended discussion, but which has long since been overruled,  we  have uniformly  and freque laid down the rule that an accused person may be convicted of "any crime described and charged by the facts set out  in  the information," irresp of, and without regard  to  the designation  or characterization  of the crime set  forth in the title of the complaint or information by the pri complainant or the public prosecuting  officer.  (U.  S. vs. Supi Rep., 671; U. S. vs. Treyes,  14 Phil. Rep., 270;  U. S, vs. Phil. Rep., 391; U. S. vs.  Lim San,  17 Phil. Rep., 273; U. S. Guzman,  19 Phil. Rep., 350.)

The information in this case charges  the defendant with the commission the crime  as follows:

"That on  or about December 7, 1910,  in the municipality of Santo Nino, Province of Cagayan, P. L, the said  Patricio Campo did willfully, illeg criminally and with a blunt instrument attack and strike Isidro Palejo, upon his head various wounds and bruises which caused the death of the said Isidro Palejo. An act committed in violation of the law."

It will be seen that the information does not charge that the unlawful t of the life of the deceased was marked with  treachery, or any one of th five  qualifying circumstances in the absence of which the act ca held to be asesinato (murder)  as denned  in  article  403 of   the Code Manifestly, therefore, in accordance with the doctrine  laid down in the cited above,  the trial  judge properly declined to convict  the defenda that  crime, although the evidence introduced at the trial conclusively established the fact that he had committed  it.

It  is suggested  in  the  brief of  the Attorney-General that since  alevosia  (treachery)  is not expressly  charged in the complaint, improper for the court to take it into consideration in imposing the pre penalty for the homicide  of which  the  appellant was convicted. In sup of this contention reference is made to a decision of the supreme court Spain wherein  that court, in discussing the penalty to be imposed  on convicted of homicide, held that  the generic aggravating circumstance o alevosia  (treachery)  should  not be taken into consideration "beca really exists, it increases the penal responsibility " by  converting th into murder; and  if it is not sufficiently  proved, for  the same reaso it is rejected as constituent it must be rejected as generic, for that w legally unjustified  cannot in any way be regarded  as  aggravating." (V Penal Code, VoL I, p. 253.)  But this comment of the supreme court of Sp is to be construed with reference to the judicial system  of procedure force in the jurisdiction  wherein it was made.  Under that system, if proof had been sufficient to establish  the existence of the  attendant circumstance alevosia,  it would have been  the duty of the court convict the defendant of the crime of asesinato (murder); and what the court really held was, that in tfhe case then under consideration, alevo (treachery) had not been proven, and  for that  sufficient reason could be taken into consideration either as a qualifying circumstance (circ cualificativa)  or  as a generic aggravating circumstance.

Under our Penal  Code, the penalty prescribed for the offenses defined therein must be imposed  in a more severe degree, within the prescribed when it appears that the commission  of those offenses  is attended by one or more of the generic  aggravating circumstances expressly set  out chapter 4  book  1 of the Code:  and we have uniformly held that, although the information contains no allegation as to  the fact that the commission of the crime charged was marked with one  or more  of  these generic aggravating circumstances, nevertheless that fact may be proven the trial, and, if proven, must  be taken into consideration in imposing penalty.

This rule of practice is justified on the ground that the introduction o evidence is admitted only for the purpose of showing the precise manner which the  offense actually charged in the complaint was committed; and not for the purpose of changing the legal characterization or designatio the offense charged in the information, or of showing that the offense committed was in fact a  higher offense than that charged in the information.   It follows, of course, that proof of the existence of one more aggravating circumstances not expressly charged  in the complaint and  should serve no other purpose  than that of aiding the court in determining whether the penalty should be imposed in a more or less seve form, within the limits prescribed for the offense charged in the compla information.

Proof that the commission of an offense charged in the complaint or information was marked by an  aggravating circumstance not mentioned therein should not and will not be denied its logical and normal effect increasing  the severity of the penalty to be imposed within the limits prescribed by law for that offense, on the sole ground that,  had the aggravating  circumstance been set  forth  in the complaint  or  informa proof of its  existence  would have justified the treatment of that circumstance as  a qualifiying circumstance, and the conviction of the a of a higher offense than that actually charged.

As throwing  some light on this  holding,  attention is directed to  the that, when a conviction  is had on a complaint or information charging t crime of assassination, and it  appears that the unlawful taking of the of another was marked with two or more of the above, set out circumstances, any one of which is sufficient to qualify the crime as th assassination, then  under the practice of this  court, adhering to  the practice  established  in the supreme  court of Spain, any one of these circumstances may be treated as the qualifying circumstance which raises crime to that of assassination, and the others are then treated as gener aggravating  circumstances to be taken into consideration in  determinin degree  of severity with which the penalty prescribed for that crime sho be imposed.

Since the  existence of this  aggravating  circumstance alone, in  the a of proof of  any extenuating circumstance, is sufficient to sustain the of the trial court in imposing the  penalty in  its maximum degree,  it necessary for us to consider the questions which have been raised as  to existence or nonexistence of other aggravating  circumstances.

The judgment of the court below convicting the defendant and appellant o the crime of homicide with which he was charged,  marked with the aggravating circumstance  of alevosia,  and sentencing him therefor is affirmed, with the costs of this instance against the appellant.

Arellano, C. J., Mapa, Johnson, and Trent, JJ., concur.