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[ GR No. 7539, Nov 05, 1912 ]



23 Phil. 375

[ G. R. No. 7539, November 05, 1912 ]




The  defendant  and appellant  in this case was charged with the crime o lesiones graves  (serious physical injuries) in the  Court of First Inst Province of Tarlac, upon the following information: 

"The undersigned charges Ciriaco Punsalan with  the crime of lesiones gr committed as follows: 

"On or about August 11 of the present year (1910),  the said accused did maliciously and  criminally attack Juan de Jesus with a penknife, inflict him injuries in three fingers of his left hand, as a result of which said have become useless.  The motive was  that the accused suspected that the victim knew about the abduction of the former's sister. 

"The affair occurred in the municipality of Tarlac, Province of  Tarlac, violation of the  law."

Accepting, as we do, the view of the trial  judge as to the degree  of credibility which should be accorded to  the  respective witnesses of the prosecution and the defense,  we are satisfied that the evidence of  rec conclusively establishes the guilt of the defendant and appellant of the with which he was charged.

The trial court found the defendant and appellant guilty of the crime of lesiones graves  (serious physical injuries) as defined  and penalized i paragraph 2 of article 416 of the Penal Code, and sentenced him to three years six months and twenty-one days of prision  correecional.  We are o opinion, however, that the crime with which the defendant and appellant was charged in the information is that defined in paragraph 3 of article of the Penal Code, and that, even if the evidence of record were suffici to establish the guilt of the accused of the higher offense defined and penalized in paragraph 2 of that article, the trial court, nevertheless, convicting the defendant of a higher offense than that with which he was charged in the information upon which he was tried. Paragraphs 2 and 3 o article 416 of  the Penal  Code are  as follows: 

"Art. 416. Any person who shall wound, beat, or assault another shall be guilty of the crime of inflicting serious physical injuries, and shall suffer: 

*       *       *       *       *        *       * 

"2. The penalty of prision correctional in its medium and maximum degre in consequence of the physical injuries the person injured shall have eye  or any principal member, or shall have lost the use of such  member or shall have become incapacitated for the work in which  he shall have been habitually engaged before receiving the injury. 

"3. The penalty of prision correctional  in its minimum and  medium deg if in consequence  of the physical injuries the person injured shall ha become deformed, or shall have lost some member other than a principal member, or shall have lost the use of  such  member, or shall  have bee or incapacitated  for the performance of the work in which  he was habitually engaged, for a period  of more than ninety days."

The trial judge found, and the evidence of record  sustains his finding that as a result of the injuries deceived by the offended party, he lo use of three of the  fingers of his left hand, he having lost "the power  reflection of those fingers."  The trial judge appears to have been of opinion that this  finding was equivalent to a finding that the offend party had lost the use of a principal member, as that term is used in paragraph 2 of article 416,  and, in accordance with this conclusion, imposed the  penalty prescribed in that section.

Under a decision of the supreme court  of Spain dated August 21, 1874, might become an interesting question in a proper case whether or not t loss of capacity  to bend three fingers of one hand should be taken to be equivalent to the" loss of the use of that hand so as to sustain a conviction of the violation of the provision of paragraph 2 of article In that case the supreme court of Spain held, upon proof that.three fingers of. one hand had been cut off, that the injured party had lost the  us of the hand itself, and that since  the  hand is a principal member under the provisions of paragraph 2 of article 416, the offender should be convicted and sentenced under the provisions of  that section.   (Viad Penal Code, Vol. Ill, 4th ed., p. 73.)

In the  case at bar, however, we are not called upon to go into  this question, because  the  information does  not charge that  the injuries caused by the accused resulted in the loss of the use of a principal member. The allegation contained in the information is merely to the e that the injured party lost the use of three of the fingers of his left and there is no  allegation touching the loss  of the use of  the  hand  itself.   The fingers  of the hand are not principal members, and it i evident, therefore,  that without an  allegation that as a  result of of the use of several fingers the use of the hand itself had been lost information charges the infliction of injuries of the class defined in paragraph 3 of article 416, and not of the class of paragraph 2 of article 416.

We have frequently held that since an accused person is entitled to be advised at the outset  of the proceedings as to the nature and character of the offense with which he is charged, a conviction cannot be sustain for  a higher or different offense than that charged, even though the proof adduced at the trial be sufficient to  establish  the guilt of t accused of a higher offense.

The judgment of conviction and the sentence imposed by the trial court should be and are  hereby reversed, but the evidence of record establish the guilt of the defendant beyond a reasonable doubt of the offense with  which fie is charged, that is  to say, of the offense defined an penalized in paragraph 3 of article 416, we find him guilty as charged there being neither aggravating nor  extenuating  circumstances, we sentence him to one year eight months and twenty-one days of prision correccional, that being the medium penalty prescribed by  law, together with the accessory penalties prescribed by law, to pay the co of the proceedings in both instances, and to the indemnification of th offended party in the sum of P13, that being the amount of the damages proven at the trial  as found  by  the trial court.

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