PHILIPPINE LAW JOURNAL

monthly. J ulV \ 0 th.,. acade mic vnr, by tI

Coll .. ,,, of I. a w. UniverSit y 01 . he Philippi"" ,
Sln, l. numb ... 60 uII'a ....
.'>',,",otln 1.o<1I'n
C. V. Cruci\ln
ell",nr Jon/l'ku
Cedlla
St><du! E,j;lo''''1 BNra
Con .. "d"
l::rn,mo R. C.
E"lallo i.e){M.<ul

L .. J. Ihrvu
l.y,liR l'1orcnJo
R. Ln,,.
RHfM\') D. S .. 1..,..)0
Vlrstill., Patricio
P. Juno de Di .. o
I..t."'d!io ,\,
Di(1esi of
RECEKT DECISIONS
of the Phil ippine S upl'eme Court
l I n 1101. ",IUlU., " .Jilte., of eurr""! ." ... . 01 .. 1 int .. '" h"'C-
tit lone..... dl.i<" .. 10",., not 1H>< n fl,,\,l i,htd In "-lot' Offici,,] GUeU". and tna n,
of lh<-m .,""o;n1l)' ,10" '>l will not.., "'>Ilear n"t .... , ,"

?!I.. RTGMa:--Acr 4122-
CONSTJTUTt.:J NALJTy.-Mullila Tmd_
imy & SH{lp/y CQ'IIIfJII)'Y, p/(I,il!lifJ-
a}JPcllnnt V8. TeOc!Ol,f;O PHilO, dc-
1""d(Olf'NIPCIlCI!-, G. R. S O. "'37C/o,
Octobel" 30. 11136.-0n Novembe, 27,
1933 the d<.-it:.'ndant n truck
ehassis f!'Om t he plaintiff
by inst all ments and executed a InOIt-
tage Oil the same truck to .secure
payment. On JanualY 5, 1934 anu-
l he, document called 'amplilkatil).l
(if tht! cha ttel mOI-tgage" ,,;.; ,-
cut(>{\ by the paltic,,, wln,rehr ,hi'
tlt'fend al'll mOl'tgaged certain Ical
IIIol,.., r ty to thl plaintiff us a fUJ-
thel' security for Ihe paymellt <)f
the pUI'ellase Ilriee. The (lldendant.
having failed to as 1WI" COII-
tn'.ct, the plaintiff fO"eclosed the
chattel m allil the true II \\"a ...
sold. Thi s a.;tlVn is to 1"('(:0" 'I" the
balance of t he (l.:obt in the fOI'cclo-
sU"e of I'eal e:'\lllte mong-ap-' d,
T he questions ,'ai sed by the appeal
of the plaintiff a re: I. T he appli -
l'"bility of Act 4122 to the CDse aL
bar, tlnd Z. The constltut ionaJi ty (If
!':ni d Act. Held: 1. AhhouJth tht:
df:fendant',; obligation to the plain-
t iff was con tracted on November
27, Ui33, :and Act -1122 took effect
on 9, 1933 It sbould be
Obsel'ved that the original C"onti-aet
of ehnttcl lllo ltgage lIovated 011
J :,:nllHI'y 1!)34 by tht! (xecuLion
of 11 docu:ment termed by the par-
ties as 'amplification of the chattel
IllOI'tgllgC." To all intents and pur-
puse.'! a /lew contlact of sale and
'no"tgage was made and came with-
in the pur' .. ie", of Act ,1122,
chosen to the chattel mOIt-
gage, the vendor, under said Act,
has no fU!"The, action to rec()va the
unpaid balance of the pdce. 2. The
constitiltionality of Act 4122 Ihas
hel'll I!onsidel'ed and I,assed u"on by
1'0\11, in J/II/dlf' Tnlding &
-"""I'lliy CtHnptlll/l Rt:yt", G, R.
.\"0, 1.'J.j(j.,' 31H.! does not any
fm'th l' l' di:'cusl'it)11 hel'e, (Pel' Abad
SanUls, J.; AvanceiUi, C, J., Villa-
Real, I mpel'j:!.l, Din.z, Recto, Laurel ,
J.I., eOllcurl'ing,) Hl"iei"e/ 1)"11 I l>A-
G, J '1n. I.
RECENT DFJCI SiONS
CIVIL P I!OCEDUREl-RELIEF rnaM
J UDGM&l';T BY DU.-.ULT, - St"\IeI'O
lJ/aintiif-tllJpe/lr.; 1.'11. Ftl llsto
rHoz, (Vlfeu4.ant-ItPlJt!/lrml, C. R. No,
1.1897, O(lt ober 30, 1-9-f6.---J. n o.n ac-
tion brought by the plaintiff for
lhe recovery of uriain parcels of
land, the defendllnt failed to ap-
pear personally on thl" day of tria\.
However, hi s counsel move for the
post ponement of lhe hearing, which
moti on WIl S denied. Upon the evi-
presented by the plaintiff, the
court declared him the owner of the
land in questi on. Twenty-eight
after the rendition of the judgment.
Ihe defendant moved the court to
set aside lhe judgment. With his
motion was atUiehoo a medical cer
tifi cate showing that the de1endant
was under h'eatment fnr acute gas-
triti s on Ihe day of the trial, and
an arfidavit Showing II meritorious
defense, The motion wall denied.
Held: Tn construing Section 113 of
the Code of Civil P rocedur e. t hi!>
court hall held t hat wher" it appeal'"
that the judgmcllt was rendered
Ilgainllt a person th l'ough mistake,
bladvertellce, lI urprise or excusable
neglect and it further allpears on
Ihe record that be hUll a meritorlou"
dlden.l!e. the judgment &hould be- set
lI.::iide with leave to and de-
fend on the merit!. The reco ,',i
shOll'S that t he defendan t fliited to
aPI)ellr a t the trial dutl. to circum-
b['yond his control and tha t
he has a mer itorious defensc.
Judgment set aside. ( Per Abad
Santos, J,; Avanceiia, C. J., Villa-
Real. Imperial, DiM:, Laurel, JJ .,
concurring,) Ol'ief ed /'11 IISAGANI
G, J ,\YME,
C IVIL
COURT'S
LAW - GUARDIA.l'I SHIP
TO ASID!':
ORnER OF PREf'DIF.N'cn-JU(lPI F.. BfI-
lilio, 1H'tiriolltr Vi. H,JPI. J. Lt!W.ca,
JI/dye or COI(r/. 0/ Fir.' In.sll1nce
fl / Alha.V, r rfl.'PI.Ncu Baitl)n Vda.
tic r entfnw t'%. "'es /JmuI6'l1/s, G_ R.
No. Oclobtr !lS, 19.'I1,-Cer-
t l01'IIri to rev iew the ordel' of the
[ower cour t alleg<!d to have abused
itll c1i.l!cretion in appointing F,'lu1'
ciscn Ba lean guardian of the incap-
acitated Nazario Fel'llandez, P Hi-
tioner is the brothel' of the incap
acitated on the mother side and the
appointed guardian is the step
mother of the ;mid incapacitated,
Petitioner allege to hal'c bettel'
l'ight being half-bz'Othez. Hetd : Pe-
tition not well foundoo. The law
ellumel' ates an o,'de,' of preference
by reallon of relationship, for the
pos ition of guardian, The COUI't,
hllwe\'er, may not follow this or.
del' and appoint any other i,erslln,
The lack or instruction of Francisca
Bal ean, the a llpoi nted gua rdian,
dO1i not incapaci lil.te hel' to di s_
charge the position of itua ,dian.
having in mind that the estate of
the ward cons ins solel y in a pen_
",ion (If "31.1.00 (runl the United
Statel! Gov(>mment. as a retired
"!lcout" solJiei', ( Per Avanceiia,
C . 1.: VillaRcui, Santos,
Diaz, Lnul'el, J,I .. o: ncutl'ing. R{.'<:to.
J " did not take part.) Bril'fl'-l iJlI
JUSTO 01:: Dms.,
CRIM INAL P ROCEDURE-RIGHT Ot '
AN ACCUSED ru THE SERVICi:S OF AN
AT'NKNEY- P coplc Q/ Ihe P. I ..
I' I ( 'I'>lU8 l.i-m Tio.,1
It/ins I.im. Tinn fllill S J(u C/I1'wl!I, ne-
,1111t'<f-uppeUIUIf, G, fl _ Nv. 4J.9J6.
01'1, fll, 1938.-FaCI. :-Defendant
Lim Tiam was chan,ed with the
crime of theft of certain personal
prCilerty belonging to one Basililla
Cruz. Defendant pleaded guilt)' to
the complaint filed tlgtlinst hi m and
t he lower COU1t s('ntenced him to 1
month and 1 day impri sonment amI
to indemnify the offended party
.... ith the sum of ' 3,90. Appellant
now allege!! that the lower court
erred in promulgating judgment
him without infor ming him
of hi! l'i ght to be by an
264 PHILI PPINE LAW JOURNAL
a ttorney. H eld: There not appear-
ing in the r ecords of the case the
fact that. the has alJpeared
with the assistance of an attot'ney
or that the COUl't did tH' did not
inform the accused of his right to
t he services of an attol'lley de ojicio,
the SUPreme COUl't must presume
that the lower Tribunal gave such
an information to the accused be-
cause there is the presumption that
an official duty has been duly com-
plied with. Revocation of the judg-
ment of the lower COUlt will not
be justified where it does not appeal'
affirmatively in the records of the
case that the lowel' COUl't failed to
infurm the accused of such a right.
(Per Avancena, C. J.; Villa- Real ,
Imperinl , Din7., LAIII'el, ,J.I. , ('oneul'-
I' ing; Rectu and Abad Santos, JJ. ,
dissenting.) Bl'ief,' d by CECII.!A i\1u-
i'-oz,
C IVI L PUOCElJUIW-INJUN(;TI,lN-
orw WAY-
PRIVATE P ROPERTY CI..oTHEJ) WITH
PUBLIC INTEREST-North Ncgl'os
Sugur Co, 'V8. S(!Yafill KMalgo, G. U.
Na . 1.!l33.!" Odvue]' 31, 19<J6,-
Plaintiff ill the owner of II land in
whioh is located its [a.(:t.ory and
buildings. Across its land the
plaintiff constructeu II. I'(lad connect.-
ing f actory and the pl'oyincial
highway, Adjoining thl' nlill site
of t he ]llaintiff is Sangay
defendant has a billiard hall
and tuba I;tation, Like otller IINI-
pIe the defendant used to pass
thl'(\ugh said road \)ccause it is
only means of a{'(:ess t o Haci e\lda
Sanga),. By urder uf the plaintiff
every time the ddendant paMed
dl'iving hi s automobile with a
(:.of tuba plaintiff's gatekeeper would
prevent him f r om passing thruugh
said r oad, Defendant in such cases
merely deviated from said I'oad and
continued his way I:Q tht! Hacienda
Sangay aCl'OSS the fi elds also be-
longing to the plaintiff. Hf'ld: (1)
In the cage at bar the injunction
applied for being the principal reo
medy it should be granted IInly af-
ter it h:u established that the right
to be Pl'otccted exists a nd that
acts against which the injunction
is to be directed are of
said right, None of these
is present in Lbe instunt case, It
is not IH'Oved that the deftmdant in
passing Over the plantiff's estate
occasioned damage to such estate
01' that he sold tuba within the con
fines tht'l'co(. The bare possibl!it}'
that plaintiff's laborers due con_
tiguity of Hacienda Sangay to il!'
properties might come to defend_
ant's store to imbibe tuba to
dl'unkennellS does not warrant the
"(\II .. I""i(\ l\ th nt tho> IIf'fPnllnnt \II
I'unnillg' tht! business infringes upon
plaintiff's property rights. (2)
PIt'inLiff intents not only to prohibit
the defendant from using th(' road
In queSLi::m but fl'om crossing
land also belonging to thl! plaint!f!,
whtlre carabaos are all owed til
An RCt so s hockng to th ..
could only be perpetrated
rluring the feudal period when hu
m:ln ,ighls were unmercifully sa
crificed to pl'oper ty rights, The
plaintiff invoking its sacred prop-
erty rights attempts to intrust t c
them a mission at once beyond those
conferred upon them by the consti-
tution and the laws, (3) Tlle well
known I)\'inclple of equity that "he
who comes to court, must come with
deal! hands" hal'S the granting of
the remedy applied fOI' by the plain-
tiff the plaintiff allegt'tl
under oath in its uriginal complaillt
facts which it knew to be Ol'
impl'obable. (4) The e_'Cercise of
diS('I'etioll of trial COUI'\.s in mutters
mjunctive should not be intel'ferreo:!
with by the appellee courts except
in casel; of manifest abuse. (5) We
have the case of an easement \'olun-
tal'ily constitutt"d in fa\'or of the
community, ( Art. 531, 594 c, C,)
RhlCENT DElCI SI QNS 265
The plaintiff has offered tbe use of
thi s road to the !tlmersl public upon
llaymel1t of certajn "urn as passlige
fee. It is not clnimoo that def.end-
ant had Iefused to said toll.
The defendant uoes not base hi!;
Iight upon I))'escripti:m but that
while the road remain!; Open to thr
public he has a dght to use UpOl'
paying the pas!;age fee. ( 7) The
'"{lad in Question hl\ving been de
voted to the use of the [Jublie, the
mad is chnrged with public
est and while devoted the plaintiff
may not establi sh discretionary ex
ception against any private
Affirmed. (In bane per ReNo, J.;
Avancena, C. J ., Diaz, La urel, JJ.
concurring.) Dissenting: If the
plaintiff as the of the pri
vat l' road in question has a right
to regulate use by imposing reno
,",onable relltricti ons and limitat ions,
to prohibit its use by the defendant
who has repeatedly disl'egarded the
warning of its audito,, this being a
petsona non grata is certainly not
unjust. The majority opinion reo
cognizes the right of the plaintiff
t o regulate the use of its pl"tl pe rty
but refuses it the remedy leaving
til the plaintiff no alternative th.lln
to take the Jaw into its own hand
or to close the road to
(Pel Villa.-Real J.j Imperial J .,
run'inp;.) Rrir{,'d by VIRGILIO S.
P A TflICI(I
CI\'IL PROCEDURE- I SSUANCE UP
FINAl. CERTIFICATE SAU: IN Exoc-
UTIOr. SALE--T(l1! Soo H.w.1 Pe-
dro G. R. No. 1,37(;. 01;1.
,' 1. I f/36._In a civil case between
the plaintiff and the defendant. the
court awarded a money j udgment
in fa,'oor of the plaintiff. The ,sher-
iH attached t wo parcels of land be-
longing to the defendant. The prop-
erties were sold in a public sale to
Ignacio Dy Quimco. The period for
redemption hnving elapsed without
the propert iell having been rede<!med,
the adminishator of Dy Quilllco
tiled a motion in the same civil case
praying the court that. it directs the
sher iff tn issue u fin:11 certificate of
sale of the lands in question ulld to
place Dy QUimco in possession there
0(. The defendant claimed that the
court clln not entertain s"Uch m()tiun
liS it ha s lost jUlisdiction of the
case. fi eld: In thi s jurisuiction tneJ'e
is not a single Ilrovision of law
whicb ,equit'es a purchaser of im-
movable in a public sale to bring a
sepa l'ate action to enter into pos
;;elIsion of t he pr opel"ty after the
lapse of the p(t riod of redemption.
Afi;"mM. ( Per Imperial, J . ; Avan_
cena, C. J., ViIlaReal, Santos, Dill1: ,
Laurel, .IJ., concuning. Recto, J.,
did not take part.) B)' i e/I'd bll VIR-
r.1l.1{) S. PATRICIO.
el m .. PROCEl)URt:;-ApPf'..AL--TIME
1'() BRING UP EVIDENC&-NEW DIS-
COVERED EVIDENe&-Antonio del Ro
sa/'io, 'J(:'iitioncr-appcllcfl VI. Julio
del Rosorlo, flt a/., oppoBitorBapptl.
/(mfs, G. R. No. 42J.52, October 6,
1.'136._ Testamentary proeeedings for
the probate of will. Lower court
renoered judgment admitting the
will to p,obate. appealed
to this court and tu complete the
recorll the stenOgJ'llphers were cli
,'cute!! by thi s court to transcribe
the evidence taken du ring the trial
and to forward the transcril>l to
this court. One of the stenogra-
phers filed a motion praying that
fOr reasons therein stated he be
J'clieved from transcribing the notes
taken by him. Attorney fo, appel.
lan ts were ordered to answer same
within five days but fIlilect and this
COUIt relieved said stenographer
hOll1 the ortl el-. A t this sLage of
the. proceeding!l' attol'ney for appel
lnnt!<, presented to Lhis court motion
for new trial based on newly
coveJed eddence, namely that the
tes tatri" s tat ed that she inherited
the several purcels of land from hel'
266 P HILIPPI NE LAW JOUR.NAL
IH'\'Cllls when ill tl' uth and in fact
these parcl'is of la nd were purchased
by her rather from t he Bureau of
Lands, Appellants were al so able to
procure the tl'anscri pt ion of the
notes taken the stenographel'
\\' ho transmittll d same to this court.
Attorney (01' appellants presented
mot ion praying that this transcl' ipt
be considcl'ed part of the record.
T his COUl't dirt'Cted t hat the tran-
scl'ipt be litdken out from the re-
cord. Held.- It is the duty of the
appellant to bdng up to t hi s court
in due time the evidence relied upon
on appeal. and un1e,s this is done
this cou rt will not r('vi se the evi_
dence. but rely entirely upon the
pleadings, accellt the facts as found
by the trial judge in his decision.
and examine on ly assigned errors
of law. The newly discover ed evi-
dence which is the basis of t he mo-
tion f or new t l'inl prl'sente(i in this
instanc\", even if accepted, will not
effect the regarrling the
validity of the will. A misstatement
of the true source of the property
dis posed of in will in this ease does
impair the validity of the wi!!.
Aifinned. (Per Laurel, J. ; Avan-
cene, C. J .. Villa-Real , Santos. Im-
perial, Dia'l., ,JJ. Concu)-ring. Rceto,
J.. did not take part .) S ri"I,'d, I",
JIJ STQ DE Dros.
LANO RECI STRATION-FAII.URE TO
[DE:->TW\' LA:->o--DI1iMI SSAL--! 'icl ll l'-
iii r;r.ncifl Iwd )\IIQde(a Toml)il:o, op_
flli(;(I ,1tlH 118. Til e Di" l:cl o,' of Lands
it a/. , OP1)08i / OfB, O. R.. No.
Octobel'30,19J8.-Applicants sought
the regi gtntion of n parcel of land
in exhibit A. Diaz a nd
t.he Di1'ectot of Lands opposed ap-
plicatiun. t he Cum!er on the gl'Ound
that a certain porti o" of the land
(Parcel C of exhibit 2-M. Diaz)
belonged to him, and the latter on
t he gruund that the land was it
palt of the Jlubl"ic domain. Appl i-
cant s based their claim on a pos-
!!C!SOIY information titl<.- of Sise-
nando Paley, the pn, deccssol' ill in_
terest of their vendors (I i'etro. al_
leging that the fir st parcel oe5_
cribed therein includes as pal t
thereof the land in question which
contains an area of 231.4128
tar$. They f uriher alleged conti
nuou!' and act ual possession of the
land even before 189'\ and claimed
benef its of Sect-ion 45 paragraph
(b). chaptel' 8. of Act No. 287-'.
The evidence shows that t he first
pal'cel described in the pussessor)'
information tit.Ie identical with par-
cel E of ex hibit G- Government,
wh ich was previously decreed in
f avor of applicants in expediente
No. 1881 G. L. R. O. Rec. No. 33131.
I t appears Iurther that t he a rea
of parcel T in said title is 26,10-10
hectares while that of the land ap-
pli ed for is 231.4128. Held: It
would be inflating t he area fixed
in the possessory information title
t o almost 9 times were we tl) up-
bold the daim of appli C1l.nts. It
is well-set t led that "oll ly when
boundaries given are sufficiently
certain and the identity of t he land
des!"! y proved by the boundarieS
thus indicated that an erroneous
statement concerning the ar ea can
be di sl'egal'ded or ignol'ed. olher-
wise, the area stated is f ollowed."
(Sanc: hez vs. Director of Land!',
G. R. No. -1 3094. August 31. 1936:
Pel-ez ViS. The Insul:\!' Government,
11 Phil. Rei)., 578; \'$.
or Lands, G. R, No. 37503.
January 19, 1934; Valdez vs. Di-
l'I.'cto1' of Lands, G. R. No. 39765,
October 24, 1935.) The
of applicant s about the continuous
possession or the land are the same
which theil' vendors It rein, made
when they fit'st appli ed fOI' r egis-
tration of t.he land in 191 9, which
upplicatiun was finally deni ed; hence
the averments al'C of no merit.
De n i:.\1 of arfi rmed.
(Per Laul"l'l, J.; Avancena, C.J .,
HECENT DECI SIONS 267
Vilis-Real, Santo', Imperial, Diaz,
concurring.) Briefed /'Ii CASTOR C.
JONCKO.
HQ:mCID&-A"CIIAVATINC OR QUAL-
IFYINC ClltCU)lSTASCES-MITICATING
CIRCUMSTANCES-P. i>. I. tI'.
nio Diokno (urd Roman Diok"IIQ, G. U.
No. 105100. Od, !9,M.-At. the
instance of Salome Oiokno, she and
Yu Ki ong. to whom she was en_
gaged, eloped going from Lucena,
Tayabas to San Pabl o, Laguna.
On being illfol'med of the incident,
Epitanio Diokno, father of Salome,
proceeded from Manila and toge-
ther with Iloman Di okno, brothe.r
of Salome, f ollowed the lovers to
Sa n Pablo. Coming nca r the house
where the Jover!! E pifardo
a nd Roman saw Yu Kiong comillg
down the stai r. Seemg them, Yu
Ki ong ran up the stair, and they
ran dter him. But the door up
had been closed anti Yu Kiong cried
in vain that it be opened. They
ca ught up with him, and the)' be-
ing armed each with Il ';bali80ng".
Yu Kiong knelt to them imploring
pa rdon. At Lhll.t position, Roman
and E pifanio ellch stabbed him, and
he fell down t he "lair to the bal-
cony, where they foll owed and
again they !!ubbcd him. Epifallio
r ight there at the lIpot confessed
that he stabbed Yu Kiong. but Ro.
man disappcared and was not ap-
p r ehended until three ria>'!! Inter.
Coming to the apot, the municipal
prellident allked the half-uncon-
SciOUIi Yu Kiong !leveral qut-stions,
and hill ans wer!! are now prellented
a s Exh. "0". FOUl later in
the YuKiong, st!riously
ill , made II declaration ag to how he
was attacked, nnd tilill d(.'Chuation
is now presented ::.I!! Exh. "E".
Three daYI> later Yu Kiong died.
An infor mation for murdc, wal
f iled aga inst Epifanio anu Ron-mn.
Exhibi ts "8" and "E" are
admi ss ible evidence, being an/Il
mo,.tem declarations. The proof ;,
beyond doubt that Epi-
fanio and Roman killed Yu Kiong:
but thl're being no proof beyond
res!!onable doubt of the qualifying
circumstance of abuse of superior
strength (No. 15, Art. 14 of the
Revised Penal Code) or of e\'ident
premeditat ion (No. 13, Art. 14 of
the Revised Penal C"de) under the
facts. the crime was only homicide.
The mitigating circumstance!! Ilres-
cnt are that the accused acted in
the immediate ,jndiealion of a grave
offense (No, 5, Art. 13 of the R&-
vised Pcnal Code) and al!!o that
tbey actt!d upon an impulse MI
powerful as naturally to have pro
duced passion or obfuscation (No.
6, Art 13 of t.he Revised Pellal
Code) and, in f avor of Epifanio
only. the fact that he voluntaril y
surrenrlCfed himself (No.7, Art.
13 of the Revised Penal Code).
(Per Villa-Real, J.: A\'anceiia. C.J..
and I mperial, J J ., con-
curring, and Recto, J ., not taking
parL) Laurel, J .. concurr ed in the
opinion of the majoritv, but dis-
sented from that part giving the
accused the mitigating circ:umstance
of immediate vindication of a grave
offense, on the P'Qund that there
was no "gra\'e offense" in Salo-
me. who was of age, and Yu Kiong'!!
eloping to married. Diaz, J .,
dissented. holding that t.he crime
committed was murder, the quali-
fying circumstsnce of abuse of
su perior strength ha\'ing been
proved beyond reasonable doubt in
his opinion.-Bril'fed /'11 LUIS J.
Ht:nvAS and LAIVALIO A. i\lALAFl AY.
MANOAMUS-WHI:)N i MI'1I01'rn_
Jun'l A1"rerfo, Vie/orian.o Pro"cfsro
Jl((m Diolliaio. JlflHwd MOfianll flmi
/((,]II'gio Lura, petitiGllers 'VI. Vi-
c(,11.W A ldlntele. IIi( CilUec/or IIf C'UI-
lomll fll' th e Po,.t IIj MUltila , .. e_
IIPUndC1ll, C. fl. No. October
:f /, 1936.-Petitioners herein import-
PHILIPPI NE LAW JOURNAL
ed five of from Hong- kong
fur their family \liie in 9.ccorda nc()
with Pl'odamlition No. 56 or the
Pre.!;idellt of the Commonwealth of
the al1d Customs Adlllin-
Order 31i in relat ion with
the rice cl'l!'is. Th'q nOW claim that
as individuals anll under
,mragrnph 354 of the P hilippine
Tariff Act of 1909, llmendcd by
Act No. 4198 of thld Phil iPI)ine Le-
their rice be im
Ilorted fl'ce of duty. The resp()J1(I
cnl dcnit's their claim a s dist),essed
indivi,lual8 'Ind contends that only
the Nlltional Ri ce and Corn Cur'-
flQration tan imporl rIce dutyfree;
that. t he rice mentioned coming as
does fflHlI China is subj('Ct to duly:
lind that the remedy wut;ht by peti
ti oners is improper (01' thel'e is
!iOniC Qtht:'r plain, adequ9.le and
speedy remedy in the (.o\ln;c or law.
Hence this petition fm' nlandamulI,
Issue: Will the writ lie! N !'Id:
There bein!!: a right of UIIIlCIlI f!"Om
t.he decision of a !ubordinuta office)'
to a superior one wilhin the exec
utive department the writ will not
lie, The decision of the respondent
rf'{]uil'ing payment of dutie! is ap-
pealable to the Se(1'ctal'), of F i
nance, who may reverse 01' modif)'
the Writ deni ed. (Per San-
los, ,I., Avaneeiill, C,J ., Villa-Real ,
I mJlcl'ial, Diuz, Laurel , JJ., concur-
rin}:,,) U,. it- f rd /'11 CIXT() P. f.\'A!"-
CELISTA.
LAW_ II AIlI1'UAl.. I)t:l,I"
u t' AU,1::CA,-
TliJN_ Th P<:"1J/C of lilt l'hi/il'i,i.t<:
Itlillmi/f/ PH. H'lfIlli" ,t III., Hft-
''''III SIIltl ... iI c.
{(, No, ,,:;I;;U, Ol'lo/lu' 31, J9JIi.--
The lower COUIt on a pl(>a of
convicted the of ['nbhery
p,ovided in art.ide 2!}g "f the
\'i5e(\ Penal Code, The in[unllll. -
tion, IU)I\l'vel', that tho:: of-
wall committed in a -piatt: un-
inhabit('d at the time aOO'I thut the
value involved is P150. It fu r thtl!:
all eges that the defendant-appel-
lant. is a. habilual delinquent, ha.v.
ing been once convicted of theft and
once of l'obbe-I'Y, the date of his last
conviction being September 14,
1932. Held: Aceordinll: to the terms:
of the inf-O'l'lnation, the dd('J1dant
should be puni shed under 302.
p81'nf:'I'aph 2 of the Revised Penal
Colie, the value im'o!\'ed being 1C$
than "250, Thl' omission of t he date
'f prior convictbn of the crime of
th('ft makes the all egll tion insuffi .
cient t.o dedare the appellant. a
bilual (I'.P.1. vs, MasoTl -
G. R, No, 44527 and P.P.1. \'S.
Venu!S G. R, No. 151.41) , But. tht'
reS11l ting :'Iggravll'li ng eil'ClImstance
of recidi\hm o{f"ets t.he mit.igating
cil"Cumst ance of -plea of guilty, Judg
ml'nt modified. (In bane per Aven
<.:efia, C. J,: Vi!ln-Real. Imperial,
Dial'., Lllufe!. ,IJ., concurring.J SIIn-
to! and Hl'Ct (>, ,IJ " di ssent : In
loOsin!!' the pennlty prescribed by law
of which appellant has been guilty,
the aggravating circumstance of re
cidivi!m should not be taken into
eomirleration, OUT view!! on this
question and reasons therefor
already been aet f orth in the opi.
nion by us in P,P ,I. v!'
Bernal, G. R, No. 4458G,
"If CA,SroR C, J Ul'CK').
C KUI1NAl.. !.. Aw _ l'IIunoF.Jt_ AJ>PLI _
r'''TI{\l' OF AnTS. 13 , 14, & 15 OF THE
Rf:YI s.;n Pt:NAl..
rQEltct:n WITS.-:8S-P. p, I. ]111 .\111-
"ul'IHIcIlJ i\!ue"I,flJtt/611, r;. R, ,Vo.
LI'/55, Orl, 2IJ, IfI.TIJ._ Thc accused
ajl pculefl f, om It I'lmd"red
bv t he Court. of First. i nstflnce of
Lllnao, for the crime of murder
committed a! f ollow!';; The accused
'11,1 the deceased who were adopted
bl'uLhers wcre bOLh inter ested in
,\Iv.a Bacomo. s ister-in.law of La-
ila Arb.-uintaboll. ' n the evening of
RECENT DECI SIONS
Sept, 29, 1935, the deceased wcnt
to the house of Laila whel'e ?lrors
Bacomo also lived. Upon the invi -
tati on of Lll ila, the deceased spent
the night at the house of the former.
Late in the evening, while the de-
ceased was sleeping, the accused
went undel' the house, and with a 10
cally made shotgun called 1)1I1ilm-
Iud, shot the deceased. wounding
him at the base of tho;' neck, Some
of the wounds produced wet'C nec-
essarily mortal and I'esulted to an
ulmost instantaneous death, Laila
and hi s brothel' Senallt.c, were
awakened and upon lighting a
lamp, sa w the accused with hi s
shotgun, The accused upon notic-
ing these persons ran away. The
aggravating circumstances of Ille-
VOI;"1(t and t1octurni t"v wcre taken
account of scparllteJy by the trial
court. It was contended for thc
accused thllt only one should be
considered. The aggravating cir-
cumstance of dwelling and the al-
ternative circumstance of \'elation-
ship were suggested by the prose-
cution. The defense contended that
the extreme youth of the accused
be taken as atten uating Clrcum-
l'!tance together with that of pas
s ion and obfuscatioll, and luck of
education, H61d : L Under the
facts. the aggravating cil'cumstance
of nocturnity must be deemed in-
cluded in that of (J.ie!)1I8ia. 2. The
aggrava ting circumstanee of dweU-
ing can not be considered because
the erime was not committed in
the house of the deceased. S. The
c.xtreme youth of the accused can
not also be c{msidered because the
aecused was already nineteen years
old at the time of the crime, and
is not included under A I{T, 13 No.
2 of the R.P.C. which as
folluws; "That the olf(lnderis un-
der eighteen yeal'S of age or over
seventy years." 4. The at-tcnuating
circumstance of lack of education
must be appreciated Jlnd also that,
of passiou and education, the latter
ei!'('Ulllstancc, nn account (Jf tJw
thut then between
the ac('used and !,he deceased, 5,
!"inally, th(' fact uf relationship
must be taken as <In slte-dnative
cir('umstance- because thl: aCl:.used
was the adopted brother of the de-
('eased and therefore comes undC!l'
ART. l5 of the RP.C. pI'ovi(fing
as follows: circum
sta nces al'e which a re (,ollsi-
dered as aggravllting:
jIl l!' according to
and effC(,t$ of the
01' mitigat-
the llature
eJ:ime alld
othel' cQnditions atto:'mding its com-
mission, .. " .. The altel'flat)Ve c1I"
cUlllstance of relationship ahall Ill.'
taken into considel'ation when the
offended pa)'ty the spouil.e, as-
cendant, desc<!ndant, legitimate, na-
tural or adollted brother or sister
01' I'el ative by affinity in sarnc
degTce (if the offender." Regal'd-
ing the ('ocl'ced witness, the COUl't
He/(I: 1. The fact. that a witness.
I'eruses to talk wht:1l qucstioned by
an investigating: officer, t hc conse-
quent detention, and aftel'wal'ds the
voluntary noUrication to th e said
officet' that the said witness was
ready to tell the truth, does not
The testimony
is "onsidel'cd as having beet! given
freely and voluntal'ily. The COUl't
gave judgment convicting the de-
fendant of murder and sentl:nc!!d
him to jnd(,terminate Sl'11tt!ncc
of len (10) years and one day to
seventeen yeal'S, 4 mOllths and 011'"
day or l!r iIJi(m 'm.ayor together with
Ule accessory pemlities as provided
by Ihe law. Judgment. modified
only as to penalty. (Per Imperial
J.; with whom COIlCUI' Avancei'ia
C, ,J. VilJa- Real, Santos, Diaz a.nd
Laurel, JJ., dissentbg.) Brit'f"d "If
LYDIA F'J...oRE."'IDI) ,
270
PHILIPPI NE LAW JOURNAL
CRIMINAL LAW_ TUEFT_ HA8IT_
UAI. DELINQ!1l;NCY-P. P. / . vs. Ca.-
111110 BCrlWI, G. H. No . 4988, Oc/o-
ber 31, 1936.-The accused was con-
\'ieted un an infurmation chargi ng
him of having eommitted the. crime.
of theft with the. aggravating cir
cumstance of flocturnity and that
the accused is an habitual delinquent,
having been prc\'iously convicted
thricl:' of the same crime tirsi, in
April 25, 1933; second, in June 21,
1935, and, third, in Oclobel' 19, 1935.
The third conviction haYing lken
place subsequent. to the last crime
fol' which he now being tl'i('d,
same would not be counted in dc-
t ermining t.he habitual delinquenc}'
a nd the additional penalty should be
that which is imposed by art. 62.
No.5 ( a) inst(;ad of art.. 62, No.
D (b).
In the discussion of this case.
the question was raised whether in
the cases in which t he accused wl!-s
found an habitual delinquent there
must. be considered as aggravating
circumsta nCe t.hat of recidivism
when it had been alleged and pl'UV-
ed in order to deiermine the pe-
nAlty to be imposed for the prin-
cipal crime independently of the
additional penalty whieh the law
prescribes against habitual delin-
quency. The court held that thE'
accused having been Ilre\'iOldr con-
victed thrice of t.he same offense,
the lIame must be considered as an
aggravating circumstance. The ac-
cused was sentenced to 6 months
and 1 day of prison eorreceioxal.
to return to the offended purty t.hl.'
cocks stolen of its valuI:' and an
additional penalty of 3 years of
j",u.iml COrttcclOTl(!L and pay the
costs of both cases. Modified. (Per'
Impt'l'illl. J.; Ava nceiin, C. J.,
1{l!al, Oiaz and Laurel, JJ., C(ln-
cW' l'ing.) Abad Santos, J., with
whom Recto, J., COnCUf$, dissents in
part and concurs in part; Accord-
ing to the fact.!; li nd law applicable
to this case, the aggravating cir-
cumstance of recidivism should
not be taken into account in ap_
plying the penalty prescribed by
law ror the crime of which the ap.-
pellant hal' been found guilty. One
previous conviction merely consti_
lUtes the generic aggravating cir-
cumstance prescribe b1' article 14.
par. 9. while two or more previoul!
cDnvictions qua\if}t the crime. The
prc\'ious convi ction enter int.o the
third or subsequent offense to the
extent of aggrllvating it, and in-
ereasing the punishment. III other
words, s uch Ilreviou9 convit."t.ions
constitute an e!!.sential element of
the aggravated orrense. Under the
provisions of article G2. par. 6, the
third or subsequent convictions,
combined with the previous ones,
constitutes but a 3ingle qualifying
circumst.ance. I n other words, the
St.'COnd conviction - genera!iy goes
to make up the gen(lric aggl'avating
cireumstnnce of recidivism-is ne--
c"ssari}y included ill the number of
convictions relluiroo to establish
bitual delinquency. bll
ERAS:'IO R. CRUZ.
ROCTO I NSTALL)IE.."'T LAW NOVA-
f1crY/lmwlI. /lIC., plai,,-
li(f.fITJ1Jf'Uf'l' '11. Simeon C, CflJi,de.
C. R. Nv.
Odobt'r !7, J!J96.-Thi r. is an
nction tor the recovery of a lum of
money. On May 31, 1933 the plain-
tiff sold to the defendant an E!!.Et'-X
terrapillne sedan for "1,900, of which
P:!50 was paid in Advance and tht'
1 est in two notes paynble on June
Hi, 1933 and ]'.l ay 31, 1934. These
nutes wel'e secured hy a mortgsge
on elll. The debt Wall finally
reduced to Pl,571.63 for lhe pay
ment of which a note wa! made on
Jan. 3, J934 substituting that which
expired on May 31. 1934, with the
earne guarantee as before. All
RECENT DECISIONS
that is 8!!ked by appellant i5 that
Act 4122 be applied to the calle so
that, after delivery to the plain-
tiff of the car bought and mort-
gaged, he 5hould be absolved from
the complaint. Held: The sale and
mortgage took place on May 31,
1933 while Act 4122 took effect only
In December, 1933. It i5 clear
therefo('c that Act 4122 is not ap-
pl icatory to t.he Cll5e. Wic hold
untenable the contention of the ap
pellant that, by subs tituting the note
of January 3, 1934 for th!1t which
expired on May 31, 1934, there was
a novation of the s&le and mort-
gage, upon which basis only the ap-
plicabili ty o( Act 4122 is urged.
What took place was nothing more
than a substitution of one docu-
ment for 011 the same debt
and tl'ansaction with easier terms.
J udgment affirmcd. ( Per Avan-
ceila, C.J. ; Villa Real, Santos, I m-
perial, Dial'., Laurel, JJ., concul'-
ring.) iJy CLETO P. EVA1\'
GI>LISTA,
PaOPf'.RTY AFFECTED WITIl A P UB-
LI C I NTREST_SmvITUDE--ACCiON
NEGA'NRIA.--North Negros S'lgal'
Co., inc., VlI, Sertl>jin. Hidalgo, G. R,
No, 42334.-P!aintiff constructed a
private way through its property to
the provincial road for its own con-
venience and the convenience of
others who may have dealings with
it. Defendant, a tienda owner and
tenant of a contiguous hacienda,
uses said way to sel! tuba wh ich in
toxicates laborers of the plaintiff.
Pla intiff brings this "accion nega-
toria" to enjoin the defendant from
using said way. Defendant claims
the existence of a servitude of way
in his favor, and that said way is
affected with a public interest.
Hf'ld: 1. No servitude of way un-
der the Civil Code hali- been creat-
ed on the tenement of the plaintiff
i.-: favor of the defendant, The ge-
neral p r inciples of the Roman Law
\'cgal'ding servitudes are p\'eserved
in the modern civil law, Among
these are: (1) that servitudes are
to be considered subordillate to the
right of ()wner!lhip, and (2) that
servitudes are never pre!umt'd, A
servitude of way is either legal or
,'oluntary, A mere lessee cannol
demand the legal servi tude of way.
Nor can it be said that voluntary
servitude of way exists. Lacking the
clement of continuity in its use, a
right of way may not be acquired
b)' prescription but solely by title,
n, The mere opening of the private
way in question t.o the public did
not necessarily clothe it with a pub-
lic illterest sueh as to compel the
owner thereof to aJlew everybody
to pass thereon, Even on the hy-
pothesis that such pri vate way is
affected with a public intel'est, still ,
it is good law thaL the owner t here-
of may make reasonable restrictions
on t he use thereof by the g('neral
public, I II. Denying the right of
the owner of the private way to
impose a reasonable limitati on upon
the use of itl; property would un-
dermine the right of ownership and
its i ncidents, I V. From what
been said, it does not, howevl: \" fol-
low that plaintiff is entitled to the
equitable remedy of injunction, [n
the first place, the "acdon negato
ria" which, unde,' the old Spanish
procedural law and under the Ro
man Law, eonsisted in the right of
a landowner to defend that free
domi nion of hi s land has been reo
pealed by the p!'esent Code of Ci
vii P rocedul'e, I n the second place,
injunction, being an equitable re-
medy, the granting tht'leo! is de-
pendent upon the sound di scretion
of t he court. [n the third place,
the remedy sought he,'e is not
against the tralispOI,tat.ion of tubll
by the defendant through the pre-
mises of the pl aintiff, but the en-
272
PHrLIPPI NF; LAW JOU-RNAL
tire exclusion therdrom regal'dlesa
of whet.her he carrics tuba 01' not.
In the fourth place, the revoca-
tion of the judgment of the court
bel ow woul d exclude the defendant
alone c.-om the use of the private
way while the gentl.l" al public will
be permitted to do so, The result
being clearly unjust, t he enjunction
should not be granted. (Laurel. ,I.:
Ava nccn n, C.J., Anchoto Diaz, JJ .,
conculTing and dissenting,) Briefed
by EULALI() L . LEGASPI.
PUBLIC UTILI1IY- C ITIZBNS HIP OF
OPERA TOil-NEW TRIAlr-E/Jlebmt E8-
IJjrit- VIII, SCt/) Miguel BrftwuJ/, er
oi., G. R, No .. October
1.986,-Petitioner'" application to es
tablish and operate an ice plant for
certain municipaliti es in Cavite was
denied by the Public Service Com-
mission on October 5, 1930, Said
:l]Jpli cal.ion was again denied in a
new hearing held on April 17. 1936.
The a pplicant contends that one of
the oPPollitors, not being a Filipino
ci ti!en l'(:quired by the Constitu-
tion, coul d not operate a public util-
ity, Held: A motion for new trial
01' hearing should be brought with-
in 30 days from the rendition of
judgment,
i\lattman, t he oppositor, th!lugh
not a Filipino citizen, had acqui l'-
ed his rights in t he Cavite Ice
Plant, long before the Constitution.
which conta ins a provisiun (art, 6
Li t. XXXX ) pl'ohibiting all persons
not Jo'iIipino citizcns Cl'om operating
any sel'vice 01' convenience. of pub-
lic utility. was promulgated. It is
/I universally accepted principle that
a constitution, like any ot her law,
has no I'etroactive effect unless ex-
pressly so provided. I t is certain
that the Consti tution has no such
provision. ( Per Ava nceiia, C. J.:
Villa.-Real. Abad Santos, Imperial,
Diaz, a nd Laurel , J J. , concurri ng.
Recto, J., did not take part.) 8 1' i e/lJd
'-'If E ULALfO L. LEGASPI.
CLVlL PIl:OCtOURJoJ - 1\1 ANDAMUS_
Rf:TUR.:o.' DOCUMf:,I'TS--Ma.eriallo
MO/!I, jJt!Lirio>!f; ", VI . ..t. L. Yatco
e( af" 1''' II}xmden/s, G. R. No. 1.523':
October !S, 1936.-Petiton fOl:" a '
writ of mandamus dh'ecting res-
pondents to r eturn t o the petitioner-
ce ltain documents which have been
seized fl'om him under the follow_
illS" circumstances : The petitioner
was cha l"g.>d with the viol ation of
the USUIT Law, By virtue of a
search wanal1t. issued by the Coul't
of First In$tan1:e oi Riz:a.l, an agent
of the Anti Usul'r Boa rd seized
vadous documents belunging to the
petitione.r. F or lack of proof the
usury chat'ge dismissed. Des-
pite petitioner's demand, the Anti
U!IIUI'Y BOard I'efused to give up the
papers but instead ref:lTed the case
w t.he Bureau of Internal Revenue
becau,,!' it was found out that jle-
t itiQner has been engaged in the
business of money Ie.nding without
paying t he Internal Hevenue Pri-
\'i!ege tax, The Collector of Inter_
nal RI!\'enue the Anti
Usury Board 10 withhold the doc-
mcnts. lI eld.: From Sec, 96 of G. 0,
Nt: , 58, which de.fine!! the search
walTant, and Sec. 99, l d" which
prescribes its form, it can be clear-
ly seen that the officer entrusted
wilh the execution of the search
warrant. should report the result to
the court which issues the said wril,
delivering to it whatever personal
may have bl!c.n I'eized. In
thi s case the sea rch wa rrant was
i::sued by the Court of First In-
stan1:e of Rizal. As thesc papers
II re in the cUl'tod:-,- of the Anti
Us ury Board, it is Jll'CSUllIed th
have becn turned over to it
by virtue of an order of said court,
(Sec. 334, No. 31, Act. No. HUH
The Anti Usury Board has there-
fore been constituted an agent of
the Court of First Instance of Ri
za! for custody of the documents
in question, and since the usury
RECENT DECI SIONS 273
"harge against the petitioner hall
been dismissed, the Anti USU]y
r:oard is unclel' obligation to Idurn
the!!e documents to the Court of
First I nst ance o{ Riul. The Col-
ketor of I nternal Revenue is not
( "titled to t hese documents without
judieial authorization (or to hold
ot herwhe would be io sanction a n
il. ter relellce by an adminisb'ati\e
offici al in the aICail'S of the judi
ciary, Howcve r , a writ of ma nda-
mus will not li e agai nst the
Collector of I nternal Revellue or
the Anti USU]y Board to compel
t he", to ]'eturn the documents be-
cl:.use the Cou"t of First In,stance
of Riwl is the body which has the
legal custody thereof <;I!:! ill
(ol'e the cnly one aU\horj:.:ed by law
to ]eturn them to the owner. Wr it
denied withou t prejudice to the
right of t he petitioner to ask the
COU]'t of Firs t Instancc of Riza l
for the return of the docullwnts in
question. ( Per Villa-Real, J,;
Avanceim, C, J " Diaz, J., c()nculTing:
Imperial, J" concu]'S in a separatf
opinion,) Di.886t1.ti1lO opi1ti01!:
Every person, whether a citizen or
an alien resident, is entitled to pos-
sess, usc and enjoy his private pa_
I ers which are, as Lord Camden
has s aid, among his dearest posses
No pe rson or body of per.
son,; or court, Il cting a s a govern-
]mmtal o,glln and under the
of law, by Viltuc of a war-
r an t, ca n deprive him of thi s right.
! Uy Khctin \'. Villa-Real, 42 PhiL
SS6, etc,) Ol'dinal' ily, t he practice
L .. {o file II tilncly IIpplication in
,hoo form of a moti ::m in the court
whic:h issued the search warrant
1'0" the detennillation of the
lcgality or of the search
IitHl Eei'l:ure made and peti tbni ng
f(>r t he return of t.hose paper s a nd
effects t he f raudulent or i\legal
<'haracter tJf which hal:e no, been
fully el!labEshed. I People vs. Car-
Ius, 47 Phil, 626, t'te,) But this r e-
lllcdy is not exclusive. In the Uni ted
val'j ous l'emedie,; art' accord_
"d : an independent s ummary pro-
where no action is pending
(56 C. J" sec, 180); libel on the
seizure ( 56 C. J. 184) ; r eplevin
t' uits (1S2 N. Y. S, 526); a nd where
the propel'ty is under the control
of the COUIt, thus being placed be-
the reach of replevin or other
independent or plenary nom<..uy, II
petition for the restol.""ation of prop
elt!>, llula,\\'fully seized may be pre-
(56 C, ,I., 183). The fart
fhen, that one remedy is usua!ly
lesortcd t J dOcs not preclude re-
cou rsc to other remedies; and in
merito]ious cases the extraordina ry
legal rcmt:dy of mandamus should
be g ranted as thi s remedy i.o; morc
speedy and adequate, Othenl'i se, the
daborate constitutiona l and statu_
lory p.rovisions whi ch guarantee t he
and indefeasible right of the
people to be secu re in their houses,
papers and effects from the unjust
enCloachmen t of governmental pow-
er woul d be but an empty medley of
words-without meaning, without
nurpose. We should be ever vigi
lant in the protection and ma inte-
"'l anCe of basic individual rights,
( Per Laurel, J,; Imperial, J" r."n-
"UI'S I , Conc1t1'ring Opi1tio-n.: The
peti ti on in this calle 111USt be denie..1
because mandamus is 1I0t the pro-
pel' remedy, The role is t hat ma n_
will not primarily issue if
the petitioner has another adequate
]'emedy. The petit ioner cauld have
l'c,mrled to anyone of the various ,
]'cmedie-s suggested by JUlltite Lall-
I'el, the usual one bei ng the filing
1' ( a motion in the CJ)urt from which
the wa r rant was issued for the re-
!llrn of t he documents and papers
i1lec:nlly seized. I n Nicolas, vs,
of First Inst.ance of n oco!>
NOI1:e, 42 Phil. fl4:'l . this eO\1l't heM
lha t t he wri t of manda.ml1!\ wi!J not
be iSf'ued whe.rc the petit ioner has
complete remedy in the court of
274 PHILIPPINE LAW .JOURNAL
fint. inlltanee by motion. (Per Abad
Santo!!, J.) BnNed b" D.
S" LCmo.
ESTATE 0 .' A NDRES REYES
i DCCEASElJ) --J EXPF.!'!; t;S
OJ' Ac-
QUIRED DURI NC THE )tARRIA(;E BY
EITIU::R SpnUSE REGARDED AS CO:-;JU-
CAL Prt OPERTY UNTIL TilE CONTRARY
IS PR.oVEf)-Feli..1I Cam.in de ReI/til,
PfJt(, ioltcT-Appelln.nt ve. JlHl'lta RI'-
yell ((6 IImw. OPl){J/ii t or-AI)rx'lIc6. G.
R. No. J.!!0fI2, Oc'ober tB, 19.18.-
Appeal from a deeree of the Court
of First Instane(' disapproving the
project of partition submitted by the
petitioner Felisa Camia de Reyell ,
widow of thl" deceased and approv-
ing the counter-projeet of parti tion
s ubmitted by the nppof; itllr J uana
Reye!l de llano, the. only s urviving
r hi ld a nd heir of the deceascd by
hi s fi rst During his fi rst
the decealled as we!! as
hil first wife acquired from the Gov-
ernment several parcels of Friar
lands duly described in t.he records.
Subsequent to the death of first
wife in 1922. Andres Reyes contract-
ed a second marri age with the here-
in petitioner Felisa Camia de Re-
yes, by whom he had a son. Both
the SiXlU!eS acquired additional paI-
eel s of land during t hei r marriage.
Andres Reyes di ed in April , 1932,
lea\-ing a will which was legalit.ed
in June, 1933. The report dated
May 8, 1933, of the Conlmissioner
on Cl aims and Appraisal heretofore
appointf'd by t he court . was a p-
proved and declared final after the
fa ilure of the of the tea-
tate estate to appeal thereflofll. The
petit ioner. as the duly IIppllinted ad-
mini stratrb:: of the property of the
deccased, presented the l'irst account.
ing of her administ ration on May
13. 1933, t o which t.he oppositor dul y
in writi ng bearing date of
June :l lind June 12. 193:-1, II. lleginll'
that 80mI'. of the itenlS of ex pendi-
ture incl uded therein wcre improper
and unnecessary. The .second ac-
count ing submitted on October 13.
1933, was likewise opposed by the
oppositor on the same grounds. Fi_
nally. the final accou nting, toget her
wi th a project of partition, was pre-
sent e-d by the adminil't ratrix on Oe-
tober 16. 1933. to which the
sitor OPIMlsed in writing dated Oc-
tober 20, 1933, alleging, among ofhet
that the evaluation of t he
property made by the Commissioner
on Claim!'! and Appraisal W&I! inade-
quate and unjust: that the projeet
of partition did not include ali the
property which sho1lld be included;
that it included c!-rtain property be-
longing to tb! conjugal property of
the first marriage; t.hat the said
project of partition was based on
the will ot the deeel\ sed, some pro-
visions of which were illegal. The
oppositor at the same time present_
ed a counter-pr oject. of par tition
which wa.s the one a.pproved by
tria l court. Upon appeal, the peti -
tionetappellant made several a e-
of error which may be
summari::ted as follows: ( I ) All ow-
ing t he oppO$itor to impugn the
evalua tion of the property made by
the Commissioners on Cla.i ms and
App ra il! al whoee report WM al-
ready decl ared final in J une. 1935.
without opposi tion !rorn the oppos-
itor; (2) disallowing some of the
items of expenditure,'; poi nted out by
the oPPolitof', (3) disapproving
project. of par tition s ubmitted by
her and approving th .. t submitted
by the oppositor. fi eld: ( I ) The
pOIt of the Commissioners on Claim.
lind Al1JII'ai sal which WHS declared
final by the court in Junt, 1933, is
only so with respect to t he creditors
of the testate- '!Itatll named in the
ordt: r of the court who did not ap-
peal therefrom. The evaluat.lon of
the ,Iropertl' in said report, ,,-ith
resiX";:t. to the oPllolit.or herein, is
not nor does it oblig(' the
RECfo.:NT DECIS lONS
275
court. to adopt it. No errol' wali
conllll ill,cJ by the lower court in aJ-
mit ting t.he tcstimony of Benediclo
A, llano it"npugning t he evo.!ua t.ion
of the pl'operly of the rl cceased made
by the. Commissioner; (2) The ex
penses for transportation and sub-
s istence incuJ"fcd by the widow while
attending to the testamentary pl'O-
ct-criing-" accompanied by hCI' moth
er and nlinor son, 3<1 well as the ex
Jlcnses for electric light in the con
jugnl dwelling f rom the time the
husband died to thc the wid-
ow's administl'atiOI\ tJf the PI'Oll(>rty
terminated and the funel'ol expense!!:
and expense!!: tor "\'clada or vela-
ci6n" for the soul 01 the deceased
a l'e justifi ed and 1!I'opcrly cllargc-
nbl e against the of the de-
ceased, Thc expensell. howevel', in_
cuned in connection wilh the se-
curing of bond (fiadores) and fo('
medical expenses Incurred by her
minor son, who had II monthly al.
lowance of P25,OO fo(, his education
and mainl.enancc, arc not [lroper to
charge against the estnte and shoulll
be di sall owed; (3) The [ll'opel' ty a c-
quirc{l by the deceased duri ng the
first ma rriage is, according to the
law in this judsdiction, presumed
conjugal propeJ'ty of the first mar-
doge, The blue fact th at in t he
cel'tifi catc of s al e thc title appears
to vested on Andres Reyes as
vendee does not divc!lt the pr o[lc('ty
of the eharacter of being euujugal.
Following the same legal p!'inciple,
t he 'Il'operty acquired by the de-
ceasc.1 and by his second wife
iug the existence of t ho second mar
dage is alS(l considered conjugnl
IHopel'ty until the contrary il;
proved, I n the case at bar, (.here is
no such proof. The alleged sale by
the deceased to the petitioner, II !!:
appenr!'d in the will, of the I)ar-
ticular parcel of land questioned by
thc o]1l'ositor , is null anll \"oid by
vil'lue of AI't.icle 1458 of the Civil
Code, but thi s nullity docs not tli _
vesi- the prOllel'ty of the character
o[ being conjugal ; <<I) There was
110 irregularity ill proc('dure f ol-
Juwed by the opposi lol' ill p('csenting
her opposition to the account..M of ad-
ministration anti the. p('oject of pal' -
t ition submitted by petitionel'. The
COUI't committed no e r ror in appr ov-
ing the counter- project of IJartition
submitted by the OIlPosiwr, The law
docs 1I0t impose upon the admi nis-
trBtor the duty of pl'csenting a pro-
ject of pal'tilion fol' the di stl'i buti on
of the jl j'operty of the deceased, On-
ly the judge has authority to do the
distribution of the property and de-
termi ne who are cntitled to partici-
pate therei n and may r('quire the a d-
ministrator or an y pel'son intcrested
to present a project of pal,tition
fOl' his considerati on, The project
of partition that the
hall pN!sented is not conclush'e; the
in \.cl'esi.ed pal'ties m3Y oppose its ap-
proval and present a cou nter-project
of plll't.iUon. as was done in the case
at bul', Judgment a ffirmed subject
to sli ght moditi ca t.i oml in the ques-
tion of administration expenses,
{Pel" Villa-Real, J,j Avancefla, C, J"
Abad Santos, Imperial. Diaz and
Recto, JJ" caneuning, ) lJriefed 0/,/
C, V, CRUCU.LO,
C IVU. LAW- RECOV.::Rl' OF Dl:JlT-
DAMAGES Our,; 1'0 BREACH OF OON
TRACT- A c'IIUl /i'illl lJj, ImJ" plaintiff-
11111X'1/(lIIt VS, TJl cul er, SUlmly COl'-
lJOration, defe';lIlunL-Ql11ICllUJlI. G, n,
No, -lf999, Oclobn' .10, 19,16,-The
Acme Films, Inc, filed 1111 action in
the CoUI"t of Firs t I nstance for the
r ccove r y of debt evidenced b)' the
Ill'omi!lsol'Y notes malle by the de-
f(' l1ti nnt, Theatel's Supply Corpol'a-
tion, in favor of the fOl'mel" Eighl
{lI'Ollli"sor y notes were made in l a-
VOl' of the plaintiff by the defend-
an L fOl' a n aggregate s um of f'200,OO
one ("Of wh ich has btoell already pain,
So that this aetioll is to I' CCO\'cI' t lle
unpaid balance or 1' 175,00 with 8%
LAW JOURNAL
pel' fl nnUIll and 1\1$0 nn a(iltitiOllai
su m C<luh'al ( nt to 10';' of the wholl'
Ilmou nt then I'emainiug ul1pa irl all
nttorney's fees. The'll' al'c pl'ovidcd
fOI' in t.he pl'olllil;$OI'Y not",!, mad\.'
by Lhe defendant ill lI\vor of the
Ilhlintiff. The d,:(c'ndlint intel'posed
Ii countel'-complaillt demand ing that
the plai ntiff the !!um of r.tQO,OO
ns (]l'nHlg('s s uffet'ed by the ddentl-
anL because of t he plaintiff's fail.
ure to tl elh'er the lilll\s while it
obligllt ed to delh'cl' to the defend-
ant, The defl'ndall t ft vl' l'l'cd that
because of this bl'each of contl'act
by the plaintiff, that it (defendant)
was forced t o connaet wi l h a nother
tomllNlY 0 11 a "cry much dcarel' pro-
position, Thc defendant fu!'t hcr
t. hat since the Rggreglltc
debt of f'2{)O,OO (] ellenr!2t1 upon the
delivel'Y of t he films, and since the
pl aintiff failed to deliver the films,
the debt therefore
The Court of F il'S!. ' nsta.nce I'CIl-
dered j udgment ill (:I VOl' or the
plaintiff condemning the do:>fendant
to pay to the pla inti if r nO,C/o, Bolh
the pl aintiff am.! t he defendant all-
pealed, hence this double appeal.
The pl aintiff assigned a>l el'ror t he
fact that the lowel' COUIt decided
that thc dt:bt of thc wa"
dependent upon the obligation of the
plRintiff to deJi vt.!I' the films. On
thi s point, the SUPl'ClllC COUl't, fi rM:
The debt of th e defenda nt WIlS not
cl cllcndent IIllon t he delivel'y of the
films. The not0! did lIot
pro"ilie so. Besides, the cont r Ml t ')
llclivel' the films bt'gun 011 Februa ry
24, 193,1 until :'I IRI'ch 20 of the sa m{'
yea!', The debt as ,:videnl'cd by the
11I'omi.'!lIo t'Y notes was a contn .. el on
Dec. 29, 1933, These go to
sho ..... t hat the. p"omi ss(U'y notes
independent debts from that or the
dclive ry of the films, I[e nce, the
Supreme CUUl't modifi ed the jmlg-
ment of the Lowel' Court by ('On
dl'nlll ing the defenrlllllt to pay t he
Ill aintiff F175,OO with interes t of
8', pel' anllum fron' Febl'uary 2-1,
19301 until debt is {u\Jy paid and,
ulso tIll: ao.lditiOllnl umount of 10',
or rt7;;,OO as I1 ttoru(;y's fces. The
derendant in it l< ll]llleal RS
d l'Ot' QII the PUIi. o f Lower Court
in not fiuding' the 1>lalll li ff guilty uf
breach Qf contract, henl'C liable r<ll'
damag{'i; to th\.' defendant undel'
Art. 1101 of thl' Civi l Code, The
deft:Jl(bult arerred thllt, bC' eause of
the bl'eMh of
[c\'ell p,lOn,nO,
thl: 1>IRintirr, it !mf-
Thil< aliegHt ion of
the defendant was Ill""':!l' denied by
the plaintiff, tht.!l ..... rOlC the Suprt'mc
COUIt adjudged the pl"intiff to Ilay
to the defendant the of 1"-1 00,00
v. ith illt e>'{'st of 6', pt' !' annum 81\
(lillllag{'s sufi"cl'ed by lhlJ d!.'fendant
fol' t he plaintiff'!' Violation of itfl
C(lntt'sct with the defendant, (Art,
1101, Civil COOt) ( Per
J , ; Avaneeila, C. J" Santos, Imlle-
rial, Dia'/!, Laurel, JJ" concurring,
Recto
,
J .. did not take parL) BI'i('frd
IliJ LAWALTO A. ;\IAt.AIIAY a nd LUIS
J . Ih:H\'As,
PUBUC UTlI.1Tlt:s- I:-:CRl':.AsE OF
FACII, tTIIC.s--Elp;tlio JUI'tlllllW. IIJ}.-
}.Jir'''"/-(lI'P<''fiCt, d, fA ,'w;: Icc 1'{0'll/
Co" h u'" Vl'P08ito' -fIJl,II'II(),,', G, R,
Xv, .$.HG'::. Oc/obc/" :UJ, J/iJIi.-The
Ullpusitol", La Paz Ice l'lnnt Co" Inc"
fOr the I'Cdfl ioll of t he deci!licn
of t he Public Sen' icc Commis"lon
lluth .... rizing the al)J!Jicant to install
lit I fldditional producing uni t with a
copacity of 'I v.. 5 UIIlS of ice daily
in his ice planl in Jloilo, Il oilo. Tbe
OI'J)osil(ll' .ass'ignll .a.s el'!'()l's: (1)
the a ULhol'it y giVl' 1I fOl' the nddition-
III unit with thl! cSflllcity mention-
( ... 1, (2) the diSl'eglll'J by the cOln-
of t he UIl]lO!;itioll Mft:l-ed by
It to the Iletiti.:!-n and I:.n the denial
of it! motion for OJ. new trial. Thl'
Aprl itAI'! ,1i"WI'd that, llotwithstand
illg ,lutholil y to produte tell tons
vi icl,) daily, ti c produec! (Illly from
r, tu (j bccause of und
DE:CISIONS
277
of cooling which ["1,,
to come from the Iloilo Rivel-; that
this water is insufticient L:l :<upply
the needs of the public; und that.
wi t h the 1I<.I<.Ill.lonal ullit he will 11\"
able t() I'cach his quota of ten ton".
The opposilot' tried to prove t.hat
t he duily output of apll!icant's plant
is thilty tons, enough w (,nvcr the
needs of t.!w consumers; that t h.'
pl'oducing units of the lI\l plica l\(
could be lepaiJ'cd lo produce OS',
(If its origin III 11I'odu(>th'e capadty;
IIlld that, thercforc, thexc was no
need fol' thc increese of
Held: is no question that
even with the inclcasc of a["lJllitant'l'
uni ts to a jlJ"oduethc capacity l.r 15
tOilS daily he can 1)I"(}duc(' no nWIe
thun 10 tons because his auth()!"i ly
i., fo!' such amount (lnly. The
t hat he might abuse his c",njlicatc is
ll:;l reasOn fOI' denying illl[))ovl'-nHmt
of his pl a nt; if he abuses there is
the commission to suspend hi s cer-
tificate. The commission hus f0L111d
that al)plica!ioll will 1!I"Omote pub-
lic interest; and for that finding IH'
arc disinclined &;, :!.u b!<Ulule OUI
judgment, considel'ing the facts
heteill. Affirmed. ( PCl Villa-Real ,
J.: A\"tlllceiia, C, J., SantQl;,
rial, Dill1:. Laurel, JJ., cOllc:url'Ulg;
P. L'CtOt', J., did not take Tltnt.)
{hie/cl{ VII CI.E"\'O P. EV,\ NCEUST,\,
LANO Ihx:JSTIlATION _ T ORRENS
TITl.E Ii ssut:u m'ON STRE"'-' ;TH Ot Ar:
" I NF'ORMAT]oON POSF.SORIA"- E.' t'ECT
U PON TRUE P ATE:>;T PRE\'WUSI.Y b;-
SUED,-P CIII'o L oc(w/c, PClt iliollc(
fw d. A P/lc/[Ct' 'lIS. The Oil"I' clill' "I
O}Jpisitv1' and Appel/m.t, G.
R. No. 1,23_:18, Ocr.ol,el 30, /f1J/:._
Thc petitioncl helein applicd fnl the
l'egistt,ation of :1 pal'cel of land in
the Court of Fhst Jnstance The
petitioner, with hi" sister ... 1)I"OI'CJ
that they are thc owner "r the
land applied [ (II, <.Ie-
scribc<i in plan . mal:kcd J::x. ';A",
as heirs Of the (il'(:ca st'{\ Nicolas La_
'11,;t" . II al\ I\(>"..1I"$ that Nicolas La-
chste and cul tivat<.-u the
l:lI1d in tlUest ion since 1883 Utili!
death in 1927. III 1893 h ... "btaincd
:1n lnformaciOn PoSe,;orill." duly
I"l'gislered over such land. But be-
fore th i" IJet it; (.. 11 fOI J"egbtratiotl. a
Fl"ee Patent Title has beell il'SlleU
Ly the Dircctur of it) favor
uf Agustin Ra()t on the strength of
two evidence prese.med by the pe-
litioner, the Court. of Fhst i nsta nce
I;l"untoo the registnltiou of the lands
t.:ndel" the LllInd Registratio'l Art. and
dc-cl!ll'ed nul! and void the Fre{' Pa-
t ent Title issued by the DirL'{'tOI" of
Land" in faxOI" of Agustin Ront,
From this decisioH, the Director of
Lunds thl'u the Att.orney-Genel'al
oppealed_ Held: The f!lcts SOl the
lx!titionet are clearly cstnbl is hed
oyel the land by the father of thc
petitionel's al1d also of the Possesso-
ry Infonllation Titl e, the land hus
become n private l)l'(lllerty. Since
the land has ceased to become ]lub
lie and has become pl"1vatl.' propert)t,
t h", Diredor of Lands could not hlt\c
ISSUed the Free Patent Ti tit!. Hence,
lhe issued the Di lectOr of
L:lIlds is null and void. The judg-
ment of the lower Court is affirmed.
(Per Avancei'ia, C. J.: Villa-Rea!,
Sant.os, l mpel"ial, DIUZ, Lamel, ,JJ.,
concuning. Recto did not t ake
IHIl't.) Bde/nl bl/ L ,\\\'Al.lO A. MA-
LAHAY AND L UIS J. H.:RVAS,
Nf:(',.oTl AULE 1.,,\11';
ACCEPTANCE: P AYMENT (IF C HECK
,\:-!U Il'I"s EFFF.crs; RIGHT <OF "UE
Uf(AWEE T(l REOOVE!: MONKY P AID
os A F'llRGEU CHEC){ _ Pfrili/Jj,iw:J N!I-
t it)II(I/ llall/;;, PI(ti :lfil/-A).j.e/lrr fll.
The. NMioJ!ll/ City Blmk "i (\"('W
Y(wk (Old Malo)' Sefl'iec C(JllljllWY,
/ "';., 1)f.'/cf"f rml-Apjl cl!fJ,JII:;: G. R.
,\"0. ;'S5.?Ii, 81.
an n(!t.ion to rc-covet fn.m the nt--
fendants the l;um of 1' 360,25 which
the plaintiff paid Oil chock",
'!' he wc!'e SUllposcd to b ... is_
278 PHiLiPPI NE LAW .JOURNAL
IIUOO by the i'angasinan T l'llnsporta' i
!.ion Co" by Khll', t.he manager and
t.rUaSUI'Cr, It W/l.S drawn upon the,
plilintiff in favor of the Intc.mu
tiollsl Auto Repab' Shop, This were
illdorsed by an unknown perSOn in
fav.or of Motor Service Company
\\ho in turn indursc.J the same 101'
deposit at t.he Nat.ional Cit.y Bank.
The National City Bank presentod
the checks at the clt'aring hOUse and
the Philippine Nnt.ior.al Bank en ....
CHt(>(1 the National City Balik for
thc JW.id sum, Subsequently, the
v1aintifi that the siglla-
ture of the dra\\o!r in the two checks
\\'ore forged, Hence, this action was
brought to l'eCo\'er the lIlIid sum, It
i" l"Ontcnded t hat the payment of
the checks by the drawee bank con,
"ti tutes all "aeccpt.1.ncc", and cun-
scquonUy Lhe cue sh.ould be go\'.
crned by the pro,'sion of section 62
of the Negotiable I n,;trullll.'nt. Law
\\hich Jlrovides among others 'that
the acceptor admits the existence of
the dra.wer, the genuineness of his
!Signature, and hi s capacity and au
thority to draw the instl'ument.'
HeW; This contention without
merit, A check is a bill of exchange
payable on demand and only the
rules bills of exchange
1,IIYil ble on demand urI! applicable
t:. it, accol'ding to Bection 185 o[
the N, 1. L, In view of Lhe lact
thllt ill a step unnecessa-
ry in so far as bUb of exchange
Ilayable on demand arc concerned, it
follows that the provisions relative
to acceptance arc without appli ca-
tion to checks, "Acccpl.anco" im.
plies, in effect, subsequent negotia
tion of the instrument, which is not
true in case of payment of Q check
because. from the moment a check
paid it is withdrawn froUl circu-
lation, The warr;:lI\ty established by
SCI.'. G2 is in Cavol' of the ins trument
r. ner its ac('.(!pt..llnCc, When Ihv
"/'1\\\'00 bank 0\' I)UYS a chl'\:k,
t.he cycle of negotiation is le.I'rn;na.
ted, and it is iIIogicul thereafter tto
blIClIk of holden; whl> Cl:in
in\'oke the warranty 11I'o\' ided ill k'C.
tion G2 against the dl'awee, :o.[Me.
O\CI', according La See, 192 "acce\ll-
Ilnee" mealls "an accept:lnCe com-
.,letL-d by delivery 01' llotificauuu"
und the eunCelJt is entirel), incom_
vutible with paymcnt, \\ h O: II
payment is maae the check i;:,- rL"
Lain<.-d by the bank, and there h 11(1
such thing as delivel'Y Ol' uotilit'a+
tlon to the part.y recui\'ing the IJay-
mellt. The check mal', hl1we\,el', b<-
presented for cert.iflcation in Willen
(,ase, t he cel'tificlltion ill cflUivaiUlJt
to l:ill Ilcce]ltunce, Ilud iT is lhen
the warrant)' under Sec, 02 eXISt>.,
Appellant S8 )111 that when
is made, such payment "mount.; to
WI "IlCCeptRl'ICC," beclttlSt! hl' \\'ho
pays accepts, This is true in COm
mon J)arlance, but it i5 110t "ac
cLptance" in legal cOlllkml lJat ion,
With few exceJltions, Lhe weight vJ
authority is to the effect that
ment" neither includC3 nor i mplies
'acceptance". As to !.he right of
the dl'Uwee bWlk to recover thu mono
(!y the court held that had the payee
been a holder in due COUl'se not
chargeable with un)' act of
gence the bank can not .'ecover,
According to the ulldisputC'd fllcts,
however, the appellant in
i llg the papers in question (rom
kno\\''11 persOli S without making any
hlquiry as to the idC71tity and
th.ll'ity of the s uit! nego.
tiating and indonling them, tH'tcd
negligently in failinK to d(1.e-tt the
(urgery, One who pUl'chas(!S a
check or droIt is bound to satisfy
himself t hat the paper is gelluine,
and that by indol"!ling it 01' pre-
!Wn tlng it for payment or putting
it into circul ation beful'c pl'esonta--
HECENT DECI SIONS
279
tion he inlpliedly asselu that he
prfol'med his duty. ,Moreover, un-
d(or the cil"<:um!ltnnce!l of the case,
il the apl)ell ce bank is allowed t o I'e_
eOVH, t.here will be no change of
position as as to tho injury 01' pre-
judice or the appellant. Judgment
is hereby affinned. (In banc, per
fl. ecto, J.; AVnncena, C. J., Villa-
Real, Santl.ls, Imperial, Dial.,
Dnd JJ. cuncurl"ing.)
lhil'if.'d by MANUEl, It LORA.
C1UMINAI. LAW - PE., .... . \LTY hl-
POSEU UPON HABITUAL DELINQUE:-;TS
- Rt:AS:"N t"\JR TilE SAM&.-P. P. 1.
v8. Basilio de 1/ Javier, G. R.
No . .45JflS, Octobor 3J, 1!1;J6.-Fo\'
the theft of un umbrella and a bud
hat value a t P 2.()5, lhe defendant
was sentenced to one month and
one day of QrIIlM/ .... ftlOlJlW with its
aceessories plus the indcllmization
oC the offendl..'<i party; and for be
ing a n habitual delinquent.., the ad-
ditiollul penalty of tWO yeal"s, fOUl"
IIlontM and one day of pl'illitl'h COl"
I"llcciolW/ with its con-esponding ac-
cesorics. Now this uppeal. Held :
lJy M!lIBOn of ill; amount, the crime
is puni shable with {.(rcllto nllJJlO"
in ill; minimum Ilnd medium de-
Pel' haps \.he I()wcr COU!'t
trcaLl'd him wit h lenit'.IIC)' 1Jecause
or his voluntary confl!S-'1ion and the
absence of any allegation of an ag-
grul'aLing elt'cumslan in !.he com-
,,];lint. The imposition of the au -
ditioulll pena lty 19 justified his
]Ilea of guilt a!l the rule in thi s
is that when a plea of
guilt is put in, the defendalll ad-
mil!! all the matet'ial allegati ons of
the information. (US \s. Barba, 2!)
Phil. 216; US. vs. Suntillgo, 33 Phi!.
::!O); without excl uding admissions
of previous convictiolls, (US l'S.
fiu.rlado, 42 Phil. 77) The object
)f the law in imposing additiona l
rtonalties upon habiLual uelillquents
Ill' I.he prevention of the cummissioll
lJi fUl'thel' The Revised
Penal Code lH'Ovidcs for distinct
penalties for diffel'cnt calSCS depend-
iug upou their respective circull1-
II lanCCl!. It would tM! arbitrary to
impose the additional penalty in its
maximum ]>eriod when there .oe no
::ggl'avating circumstances, 110 also
would it be if t hel'e were aggt"avsl-
ing circumstances and it CanH! in
its minimum degree. When the
Legi slature !11'o\' idcd fOI' recidivism
which is an aggl"lIvating circum-
stance, it took into consideration
the concept of habitual delinquency.
Habitual delinquency is not Ii C!'ime;
it is merely an act which, if con
cu.rl'ing with the cil'cumst:mces men_
tioned in I'ule 5 of Art.. 62 of the
Revised Penal Code, gives occasion
tc the imposition of an additional
renalty. The language ot the law
ill cxplicit. AIfil'nung thc addition-
iiI penalty, the pl"incijlll.l is
incl'ea.sed to t wo month" w!d olle
day or <tn'clllo IIwy"r. Modified.
,Per Diaz, J.; Avanccri l\, C. J. ;
Villa- Real, Imperial, Laurel. JJ ..
concurl'ing.) For the rea!l()ll!' M!t
(orlh in P. P. l . v. Bernal, G. R. No.
44!)S8, we di ssent. (Santos and
Hecla, JJ.). IJ .-ie./cd. hy AGUSTIN T.
LOCSIN.