Digest of
RECENT DECISIONS
of the Philippine Supreme Court
[In this column is presented a digest of current cases of general interest to prac_
titioners. These decisions have not yet been published in the Official Gazette, and many
of them, especially those rendered in division. will not so appear because not selected for
official report.]
CRIMINAL LAW-HOMICIDE--SELF-
DEFENSE NOT PROPER.-P. I. vs.
P.
Bartolome Ignacio, G. R. No. 34630,
August 20, 1931.-It appears that
in a certain merienda, Legarda got
drunk and uttered certain insulting
phrases which the accused thought
was directed to him. The accused
thereupon went home and took a
weapon. He then pursued Legarda,
and in a fight which ensued, the
latter was wounded from the ef-
fects of which he died. The de-
fense of the accused was that he
killed the deceased in self-defense.
Held: We believe that the accused
cannot invoke the right of legiti-
mate defense because when two per-
sons fight voluntarily, neither of
them has the right to invoke in his
favor the right of legitimate de-
fense to escape the responsibility
arising from the result of the fight.
(Decision of the Supreme Court of
Spain, January 27, 1902; People vs.
Eisma, 29 0. G. 2225). (In banc,
per Villamor, J.; Johnson, Street,
Malcolm, Ostrand, Romualdez, Villa-
Real, and Imperial concurring.)-
Briefed by LUIS G. SABATER.
CRIMINAL LAW-RAPE.-P. P. I.
vs. Alfredo Santiago, G. R. No.
. 34892, August 27, 1931.-The de-
fendant was accused of rape. The
evidence showed that the accused
proposed to the aggrieved party the
idea to go away with him, which
proposal was followed by the ac-
cused lifting the aggrieved party
and taking her to his place of
habitation, a garage about 15 met-
ers away. He took her to his room
whereby he, still lifting the ag-
grieved party, had to as~end a
ladder of about 10 steps. -During
such occurrence the aggrieved party
did not even shout. No force or
threat was IJroved in the execution
of such act by the accused. The
facts proved showed that the state-
ment of the accused that he had
amorous relations with the aggriev-
ed was true. Held: Under the cir-
cumstances above described, it is
clear that the accused had carnal
knowledge with the "aggrieved party
with the consent of the latter. If
it were true that the aggrieved
party was take"n to the habitation
of the accused without her consent,
the offended party would have
shouted for help. The absence of
a cry for help, under the circum-
stances of the case, showed that the
aggrieved party was not taken to
the room of the accused for pur-
poses of carnal knowledge without
her consent. (In banc, per Romual-
dez, J. ; Avancefia, C.J., Johnson,
Street, Malcolm, Villamor, Villa-
Real, and Imperial concurring.)-
Briefed by LUIS G. SABATER.
CRIMINAL LAW-HoMICIDE WITH
RECKLESS NEGLIGENCE.-P. I. VB.
P.
Francisco Sara, G. R. No. 34140,
August 15, 19S1.-0ne day the de-
fendant went out with a shotgun to
shoot birds. The accused, seeing a
bird sitting on a tree, raised his
gun and placed his fingers on the
trigger. Then the gun was dis-
harged and Catapang was hit by
:he bullet, and as a result of whifh
he died. No motive for killing "-as
proved, and it was proved, that the
deceased and the defendant were
relatives. Held: The accused is
guilty of homicide w~th reckless
negligence as no motIve for the
killing was proved and as it was
proved that the defendant and the
deceased were relatives. The rela-
tion of the parties shows that the
killing could not have been commit-
ted intentionally. (In bane, per
Street, J.; Avanceiia, C.J., Johnson,
M&icolm, Villamor, Romualdez, Vi-
lla-Real, and Imperial concurring.)
-Briefed by LUIS G. SABATER.
SPECIAL PROCEEDINGS- TIME
WITHIN WHICH TO PERFECT Ap-
PEALs.-Raymunda Medina vs. Hon.
Eduardo Gutien'ez David, et al.,
G. R. No. 35822, Aug. 21, 1931.-
This a petition for a writ of man-
damus in order to require the re-
spondent judge to approve the
1'eCord on appeal in a certain pro-
bate proceedings. The respondents
based their refusal on the fact that
the appeal as well as the bond were
JlOt perfected on time. In denying
the remedy prayed for and in sus-
taining the claims of the respond-
ents, the Supreme Court affirmed
the holding in the case of Buena-
67ltura and Del Rosa1-io vs. Ramos,
U Phil. 4.90, in which the follow-
g Was held: "Appeals in special
oceedings from judgments falling
er Sees. 781, 782 and 783 of
et N "
o. 190 must be perfected in
~IfollOWing manner: (a) The ap-
ant must file with the Court of
rst Instance an application for
apPeal within 20 days after the
of the judgment appealed
from; * (b) The application for an
appeal must contain a petition to
the court to fix the amount of the
appeal bond. The court should fix
the bond at once; (c) After the
amount of the appeal bond is fixed
by the court, the appellant must
present his appeal bond for ap-
proval of the court within a reason-
able time thereafter, and not to ex-
ceed the period of 5 days; (d) After
the approval of the appeal bond by
the court, the appeal must be per-
fected in the manner provided for
in Sec. 783 in relation with Sees.
781 and 782 of Act No. 190, Rule
16 (a) of the Courts of First In-
stance within a reasonable time and
not to exceed a period of 10 days
from the date of the approval of
the appeal bond." (In bane, per
Imperial, J.; Avanceiia, Johnson,
Street, Malcolm, Villamor, Romual-
dez, J.J., concurring; Villa-Real, re-
serving his vote.)-Brieefd by CAR-
LOS BARRIOS.
CRIMINALLAW-HABITUAL DELIN-
QUENTS- INTERPRETATIONOF ACT
No. 3397.-P. P. I. vs. Felipe Rama,
G. R. No. 34886, Aug. 22, 1931.-
Facts: The only question presented
by this appeal of the accused, aside
from the constitutionality of Act
No. 3397, is whether his previous
convictions in the years 1918, 1920,
and 1927 should be taken into con-
sideration in order that the addi-
tional penalty provided for in said
Act may be imposed. The accused
contends that at least his convic-
tions in the years 1918 and 1920
cannot be considered, they having
taken place ten years previous to
* Comment: By virtue of Act No. 3403,
amending Sees. 779 and 781,par. (a) should
read as follows: "The appellant must file
with the Court of First Instance an aD-
plication for an appeal wIthin 25days af-
ter the date on which he was notified of
the judgment appealed from."-C. B.
 the commISSIOn of the present of-
fense in question.
Held: Act No. 3397 is valid and
constitutional. As regards the con-
victions which occurred ten years
previous to the commission of the
offense here to be decided, it should
be observed that it is not the in-
tention of the law to exclude in
the consideration of habitual delin-
quency, convictions' that old; pro-
vided that they are followed, more
or less separated, by an offense
occurring within the ten years un-
til the conviction of a present of-
fense. Sec. 1 of Act No. 3397, in
fixing the period of ten years, fixes
the date of the release of the of-
fender, or his last conviction. If it
was otherwise, the law should have
expressly excluded, in the computa-
tion of penalties, convictions ten or
more years of age.
It should be further noted that
the law does not intend to punish
anew offenses that occasioned such
convictions, but rather to determine
whether there exists or not in the
offender criminal propensities, for
the purpose of correcting them on
the occasion of the commission of
the new offense; and the Legisla-
ture has the plenary power to de-
termine in what cases, this persist-
ence to commit wrong, should be
corrected. (In banc, per Romual-
dez, J.; Avancefla, Johnson, Street,
Malcolm, Villamor, Villa-Real, Im-
perial, J.J., concurring.)-Briefed
by CARLOSBARRIOS.
PUBLIC SERVICECOMMISSON-IR-
REGULAR EXERCISE OF JUDICIAL
PowER.-Telesforo Santos vs. The
Hon. M. V. del Rosa?'io, Associate
Public Service Commissioner, G. R.
No. 35775, August 14, 1931.-Peti-
tion for certiorari. On June 4,
1928, the petitioners were granted
a certificate of public convenience.
About three years later, the Rural
Transit Co. filed a motion before
Judge Cruz of the Public Service
Commission seeking to modify the
certificate of the petitioners by
prohibiting them from picking up
and dropping passengers along the
route. After hearing Judge Cruz
was of the opinion that the peti-
tioners could not be deprived of
the privilege; but he did not issue
any order to that effect. Instead,
he transferred the matter to Judge
del Rosario, another judge of the
Public Service Commissio'n, who
without any hearing sustained the
motion. The petitioners now claim
that the respondent exceeded his
jurisdiction because: (1) the order
granting the petitioners the certi-
ficate of public convenience, issued
three years ago, was final and could
not be modified; (2) there was no
hearing. Held: The first ground is
not tenable. Section 28 of Act 3108,
provides that the Commission may
at any time order a rehearing to
extend, revoke, or modify any order
made by it. But the writ must be
granted, for, though there was no
absolute want of jurisdiction, there
was at least an irregular exercise
of judicial power. It was improper
for respondent to decide the motion
differently from the opinion of
Judge Cruz, without at least con-
ceding to the petitioners the oppor-
tunity to be heard. (In bane, per
Street, J.)-Briefed by PABLO L.
TORRES.
CRIMINALLAW-RAPE-VIRGINITY
NOT ESSENTIAL.-P. P. I. vs. Wen-
ceslao Serrano, G. R. No. 31,.327,
August 24, 1931.-The appellant
was found guilty of the crime of
rape. He moved for a new trial on
the ground of newly discovered
evidence, presenting an affidavit
made by a physician to the effect
that coition was a habitual ex-
perience with the complainant.
Held: The alleged evidence is ir-
relevant. "The law protects the
nchaste as well as the chaste
:oman, and virginity .on the part
f the injured female IS not essen-
~ial as against a rapist." (In banc,
per Street J.)-Briefed by PABLO
L. TORRES.
DATE OF TAKING EFFECT OF A
LAW REQUIRINGPRESIDENTIALAp-
PRovAL.-The Director of Lands vs.
Buenaventura Ocampo and Arsenio
Manuel, R. G. No. 35776, Aug. 21,
1931.-Petition for certiorari. The
Philippine Legislature passed Act
3672 authorizing the presenta-
tion, within one year from the date
the act takes effect, of claims over
lands which had been declared pub-
lic. According to said act, it will
take effect on the date when the
Governor General proclaims that
the act had been approved by the
President of the United States. On
February 26, 1930, the Governor
General issued a proclamation an-
nouncing that Act 3672 had been
approved by the President of the
United States on February 7, 1930.
Later, on March 28, 1930, a second
proclamation was issued correcting
the first proclamation to the effect
that said Act had been approved
on Feb. 17, and not on Feb. 7, by
the President. -
On March 12, 1931, Manuel pres-
ented his claim to a certain lot
which had been declared public land
and obtained a judgment in his
favor. Question: Was the claim
presented within one year from the
date Act 3672 took effect, or in
other words, when did Act 3672
take effect? Held: Act 3672 took
effect on March 28, 1930, when the
second proclamation was issued, and
not on February 26, 1930. The
principal purpose in issuing the
second proclamation was to correct
the error in the first proclamation.
The correction was substantial and
amounted to a revocation of the
first proclamation inasmuch as it
referred to a date which constituted
the basis for the issuance of the
proclamations by the Governor Gen-
eral, which in turn determined the
date when the Act should take ef-
fect. It follows that the claim was
presented on time and the respond-
ent judge did not exceed his juris-
diction. (In banc, per Imperial, J.)
-Briefed by PABLOToRRES.
ELECTJONS-REQUIREMENTS F10R
OPENING BALLOT BOXEs.-Teodoro
P. Subiato vs. Alfonso M. Recto,
Judge of Court of Fi1'st Instance of
Tarlac, and Pedro L. Quines, R. G.
No. 85841. August 15, 1931.-In
an election protest initiated by
. petitioner, it was alleged that the
election inspectors in precincts Nos.
2 and 3 of Mayantoc committed ir-
regularities, without which, he would
have won by 74 votes over his op-
ponent. Respondent-protestee an-
swered alleging also irregularities,
without which, he would have won
by 29 votes, instead of 11, over pro-
testant. At trial, petitioner moved
the court to order the opening and
examination of ballot boxes in pre-
cincts Nos. 2 and 3 of Mayantoc;
but the court granted the petition
as to one precinct No.2 only.
Held: A sworn -protest alleging
irregularities in the counting of
ballots sufficient to change election
results establishes a prima facie case
in order that the court should exer-
cise its imperative duty of ordering
the opening and examination of
ballot boxes. It is error on the
court's part to deny petitioner's
motion, as such denial is contrary
to the Election Law. Art. 479,
Election Law, as amended by art,
25, Act 3210. (Manalo vs. Sevilla,
24 Jur. FiJ. 631; Merced vs. Revilla,
40 Jur. FiJ. 295; Cecilio vs. Belmon-
te, 48 Jur. Fil. 268). Mandamus
granted.
(In Division. Por Villamor, J.:
Avancefia, C. J., Johnson, Street,
Malcolm, Romualdez, Villa-Real, and
Imperial, JJ.)-Briefed by RAFAEL
T. TIRONA.
DEPORTATION OF ALIENS-CON-
CLUSIVENESSOF THE DECISION OF
THE BOARD.OF SPECIAL INQUIRY.-
Cheng Tao Liap vs. Insular Collec-
tor of Customs, R. G. No. 35183, July
24, 1931.-The plaintiff-apellant
was ordered to be deported from the
Islands by a decision of the Board
of Special Inquiry of the Bureau of
Customs. His petition for a writ
of habeas corpus before the Court
of First Instance of Manila having
been denied, he claims on appeal
that the trial court erred in con-
firming the decision of the Board of
Special Inquiry and in findingthat
his case falls under the provisions
of the Law of Congress of Feb-
ruary 5, 1917. Held: The courts
of justice can not review the weight,
admissibility, or sufficiency of evid-
ence adduced before the Board of
Special Inquiry, the decision of such
board being held to be conclusive as
lo'ng as it is founded on evidence
and confirmed by the Collector of
Customs. Neither does the mere
fact that an alien has been residing
in the Islands for more than five
years, exempt him from the provi-
sion of the Law of Congress of Feb-
ruary 5, 1917. As held in the case
of Azurna v. Collector of Customs
(40 Jur. Fil. 886), paragraph 8 of
article 19 of the aforementioned law
is applicable to any foreigner who
infringes the same, regardless of
the length of time for which said
foreigner may be resident in the
Islands. (In banc, per Romualdez,
J.; Avancefia, C. J., Johnson, Street,
Malcolm, Villamor, Villa-Real and
Imperial, J. J., concurring) .-Brief_
ed by JOSE D. INGLES.
CRIMINAL LAW CONSTITUTIONAL-
ITY OF THE HABITUALDELINQUENT
LAW.-P. P. I. vs. Fabian Montera
R. G. No. 34431, August 11, 1931.-':"
This is an appeal from a decision of
the trial court convicting the de-
fendant of theft of twelve phono-
graph records and one flashlight
valued at 1>30.30, and considering
him an habitual delinquent. De-
fendant attacks the Habitual De-
linquent Law as an ex post facto
law, in violation of the Organic Act.
Held: Statutes which authorize
a more severe punishment to be im-
posed upon one convicted of a second
or subsequent offense are not ob-
jectionable on the ground that they
are ex poM facto laws. Such sta-
tutes, the United States Supreme
Court has held, do not impose any
additional punishment for the for-
mer crimes, but simply impose a
punishment on future crimes, the
penalty therefor being enhanced on
account of the criminal propensities
of the accused. McDonald v. Mas-
sachusetts, 180 U. S. 311. (In bane,
per Malcolm, J.; Avancefia, C. J.,
Johnson, Street, Villamor, Ostrand,
Romualdez, Villa-Real, and Imperial,
J. J., concurring) .-Briefed by JOSE
D. INGLES.
ADULTERYAS A DEFENSE IN MUR-
DER CASES.-P. P. I. vs. Bituanan
(Moro,) R. G. No. 34510, Augus.t
31, 9131.-Bituanan was married to
Sabay, a Mora, according to Moro
customs and usages; and subse-
quently they were divorced accord-
ing to the same customs and usages.
After the divorce the defendant
caught Sabay and another Moro,
Ali Sabya, sleeping on the same
bed. Thereupon, the defendant at-
tacked Ali Sabya and Sabay, killing
the former and wounding the lat-
 prosecution for mur-
counsel for the defendant
contends that the defendant is
punishable only under Art. 423 of
the Penal Code which provides that
the penalty of destierro shall be
imposed upon a husband who, hav-
ing surprised his wife in the act of
adultery, shall kill her or her par-
amour in the act. The question is;
Was the divorce valid, and if not
does the act of the defe'ndant fall
under Art. 423 of the Penal Code?
Held: "Granting, without neces-
sarily having to decide, that Bitua-
Dan and Sabay were accordingly
not legally divorced, it only need be
said that there is no evidence show-
ing that Bituanan surprised Sabay
and Ali Sabya in the act of adult-
ery when he killed the latter. The
privilege given in Art. 423 of the
Penal Code extends solely to the
case of a husband who surprises
his wife in the act of actual adult-
ery, that is, actual carnal knowl-
edge with her paramour." (In bane,
per Malcolm, J.; Avancefia, C.J.,
Johnson, Street, Villamor, Romual-
dez, Villa-Real and Imperial, J.J.,
concurring.)-B?-iefed by F. T. MA-
CAHILIG.
RIGHT TO PRELIMINARY INVESTIGA-
TION.-P. P.I. vs. Albino Retalan,
R. G. No. 83991, August 19, 1931.-
A complaint was presented in the
Justice of the Peace Court charging
the defendant with the crime of
homicide. After a preliminary in-
vestigation the justice of the peace
found that there was no probable
cause for holding the defendant
guilty, but on account of the gravity
of the offense charged, certified the
cause to the Court of First In-
stance. In the latter court a com-
plaint was filed for the same of-
fense, the defendant tried, and
found guilty. On appeal the de-
fendant assigned as error the fail-
ure of the trial court to another
preliminary investigation before
proceeding with the trial. Held:
The right to a preliminary inves-
tigation is a personal privilege and
may be waived by the accused. He
cannot raise an objection upon this
ground for the first time on appeal.
In the instant case the defendant
did not raise in the lower court any
objection whatsoever as to the suf-
ficiency of the preliminary inves-
tigation conducted by the Justice
of the Peace, and it is now too late
to raise that question. (In bane,
per Johnson, J. ; Avancefia, C.J.,
Street, Malcolm, Villamor, Romual-
dez, Villa-Real, and Imperial, J.J.,
concurring.)-Briefed by F. T. MA-
CAHILIG.
REFlORMATION OF LAND TITLE.-
Florentino Esguerra vs. Andres
Pascual, R. G. No. 88588, May 12,
1931.-Facts: Plaintiff instituted
the present action for the purpose
of procuring the reformation of two
Torrens certificates of title by or-
dering the reinsertion on said cer-
tificates of the name of the plaintiff
and of a statement of the alleged
correct superficial area of the land
belonging to the Esguerras. It ap-
pears that if the certificates should
be amended in the way the plain-
tiff desires, such action should give
rise to the following consequences,
namely, that the estate of Lo Bun
Chay would have a right to go
upon Andres Pascual for the, neigh-
boring lots 4 and 59, of which
Pascual is the registered owner,
and, secondly, that Andres Pascual
would have a right of action against
Florentino Esguerra to recover
damages for breach of warranty
in the sale of said two lots (4 and
59) by Esguerra to Pascual. In
other words, to grant the remedy
sought would lead to a circuity of
action as a result of which the
 damage inflicted upon the estate of
Lo Bun Chay would in the end be
brought to the door of the plaintiff,
the very person who is now seek-
ing relief. For this reason the
Supreme Court affirmed the judg-
ment of the court below and held:
That a court of equity will not
assist in the correction of alleged
error which has the effect of
placing the parties substantially in
the same position that they should
be in if complete equity were ad-
ministered, and equity will not
grant relief where the result would
lead to circuity of action as a
consequence of which the damage
caused by granting the relief would
in the end be brought back to the
door of the very person who is
seeking relief.
DOUBLE JEOPARDY - WHEN THE
PLEA TO BE MADE.-P. P. 1. VB. Sy
Tapco, G. R. No. 34107, May 6,
1931.-The defendant was charged
in the Court of First Instance of
Leyte with violation of Act No.
2381, in having in his possession or
under his control opium, opium
ashes, and opium apparatus. He
pleaded guilty, and after the cor-
responding penalty was imposed, he
filed a motion in the court below
that the case be reopened and he
be permitted to show that his con-
viction was tantamount to putting
in jeopardy a second time, since he
had already been convicted in a
former case of maintaining an
opium joint. The motion was de-
nied and he appealed. The Su-
preme Court affirmed the judgment
of the court below and Held: 1. The
offense of maintaining an opium
joint is a different offense from
having in one's possession or under
his control opium and opium ap-
paratus. 2. The plea of double
jeopardy can only be made in the
trial court, and cannot be set up
for the first time on appeal. (Per
Street, J.)-Briefed by E. A. PI-
CAW.
PACTO DE RETRO SALES-EFFECTs.
-Roman Ciriaco, et al. VB. Benito
Halla?'ces and Felisa Bauto, R. G.
No. 33838, June 29, 1931.-Sabina
Manas was owner of an undivided
4/5 interest in fee of the land, and
an undivided 1/5 interest subject to
right of repurchase within 10 years,
terminating on May 3, 1932. On
June 4, 1927, Manas and husband
sold the property to Magbitang and
wife, subject to repurchase after
the expiration of 4 years. Thru a
series of transfers, title finally be-
came vested in Roman Ciriaco aond
Catalino Ciriaco, plaintiffs. Hence
action by plaintiffs to recover the
property from defendants, represen-
tatives of Manas, now dead. Held:
Plaintiffs as successors to Magbi-
tang are entitled to recover at least
possession of property. If the re-
presentative of Manas permits the
property to consolidate within the
period of four years, as per contract-
of June 4, 1927, the plaintiffs will
be owners of the undivided 4/5
which was owned in fee by Manas.
As to 1/5 interest, plaintiffs are
the owners of the redemptionary
interest and have the right to re-
deem from the estate of S. Manas,
and if that interest is not thus re-
deemed on or before the expiration
of the 10-year period, and the re-
presentative of Manas redeems in
her right under her contract with
Magbitang, that interest would be
lost to the plaintiffs, and it can, in
such event, only be preserved by
the exercise of the right of redemp-
tion reserved to vendor (Encarna-
cion) on or before May 3, 1932.
(Per Street, J.; Villamor, Ostrand,
Johns, Villa-real, J.J., concurring.
Romualdez, J., took no part) .-
B?'iefed by RAFAEL T. TIRONA.