October 1908 - Philippine Supreme Court Decisions/Resolutions
Philippine Supreme Court Jurisprudence
Philippine Supreme Court Jurisprudence > Year 1908 > October 1908 Decisions >
G.R. No. 4539 October 28, 1908 - UNITED STATES v. NICOLAS ARCEO
011 Phil 530:
011 Phil 530:
EN BANC
[G.R. No. 4539. October 28, 1908. ]
THE UNITED STATES, Plaintiff-Appellee, v. NICOLAS ARCEO, Defendant-Appellant.
V. Foz for Appellant.
Attorney-General Araneta for Appellee.
SYLLABUS
1. BIGAMY. — He who with criminal purpose and fraudulent intent contracts a second or subsequent marriage, while the previous one has not been lawfully dissolved, is criminally liable.
2. ID.; BAD FAITH. — An individual having gone to a parish in order to get married, claiming to be a bachelor, and having misrepresented the real citizenship, condition, and residence of his own parents, for the purpose of concealing the fact that he was a married man, his wife being still alive, and further to prevent discovery of such fact through the publication of the only bans to be made, and which was not made of his marriage, in the parish where he formerly resided, where he was married to his lawful wife, and where the family and parents of his said wife lived, the second marriage thus contracted was certainly not effected through "reckless negligence," but in bad faith and with the knowledge that his lawful wife was not dead, thus violating knowingly, and with malicious intent, the law that prohibits bigamy; therefore, the said individual, being the convicted author of an illegal marriage, and not because he committed the act through recklessness, has incurred the penalty prescribed for the crime.
3. PUBLIC DOCUMENT; CHURCH RECORDS. — The canonical entries in parochial books have not lost the character of public documents for the purpose of proving such acts as are therein related, inasmuch as, since the change of sovereignty in these Islands, no legal provision has been promulgated to destroy the official and public character that the said entries had under the former regime.
4. ID.; ID.; CERTIFIED COPIES BY PRIESTS. — Parish priests continue in the legal custody of the parochial books kept during the former sovereignty, and as such legal custodians they may issue literal copies in the form of certificates of the entries contained therein, in like manner as custodians of archives.
5. CORAM NON JUDICE; JEOPARDY. — In case of incompetence or lack of jurisdiction on the part of the judge, such proceedings as may have been instituted by him are null and void, and the defendant has not thereby been in danger of a conviction because there was no lawful trial; therefore the right of the Government to prosecute subsists and must be recognized by the court of competent jurisdiction which may be called upon to try the case, and the defense of twice in jeopardy is not admissible.
2. ID.; BAD FAITH. — An individual having gone to a parish in order to get married, claiming to be a bachelor, and having misrepresented the real citizenship, condition, and residence of his own parents, for the purpose of concealing the fact that he was a married man, his wife being still alive, and further to prevent discovery of such fact through the publication of the only bans to be made, and which was not made of his marriage, in the parish where he formerly resided, where he was married to his lawful wife, and where the family and parents of his said wife lived, the second marriage thus contracted was certainly not effected through "reckless negligence," but in bad faith and with the knowledge that his lawful wife was not dead, thus violating knowingly, and with malicious intent, the law that prohibits bigamy; therefore, the said individual, being the convicted author of an illegal marriage, and not because he committed the act through recklessness, has incurred the penalty prescribed for the crime.
3. PUBLIC DOCUMENT; CHURCH RECORDS. — The canonical entries in parochial books have not lost the character of public documents for the purpose of proving such acts as are therein related, inasmuch as, since the change of sovereignty in these Islands, no legal provision has been promulgated to destroy the official and public character that the said entries had under the former regime.
4. ID.; ID.; CERTIFIED COPIES BY PRIESTS. — Parish priests continue in the legal custody of the parochial books kept during the former sovereignty, and as such legal custodians they may issue literal copies in the form of certificates of the entries contained therein, in like manner as custodians of archives.
5. CORAM NON JUDICE; JEOPARDY. — In case of incompetence or lack of jurisdiction on the part of the judge, such proceedings as may have been instituted by him are null and void, and the defendant has not thereby been in danger of a conviction because there was no lawful trial; therefore the right of the Government to prosecute subsists and must be recognized by the court of competent jurisdiction which may be called upon to try the case, and the defense of twice in jeopardy is not admissible.
D E C I S I O N
TORRES, J. :
On the 3d of February, 1897, Nicolas Arceo married Tranquilina Arcillas, the ceremony being performed at the church of Bacolor, Pampanga, in accordance with the religious rites and legal provisions then in force; and, without the said marriage having been lawfully dissolved, since his wife, Arcillas, was still living, he contracted another marriage on the 1st of May, 1901, before the parish priest and witnesses at the church of the town of Tambobong with Teodora de Guia, according to the canonical certificates marked "A" and "B," which may be seen at folios 20 and 21 of the record.
For this reason a complaint was filed by an assistant prosecuting attorney on the 15th of October, 1903, and proceedings were instituted against Arceo. On the 5th of March, 1904, the court below sentenced the accused to the penalty of seven years of prision mayor, and to suffer the accessory penalties. An appeal was interposed by the accused and by virtue thereof this court rendered a decision on the 27th of March, 1906, 1 setting aside the judgment appealed from and dismissing the case with the costs de oficio, without prejudice (should a new complaint be filed) to a prosecution in accordance with the law in the Court of First Instance of Rizal, the only one having jurisdiction in the matter. This court ordered the said decision to be transmitted to the said lower court and to the Solicitor-General for proper action.
On the 16th of April, 1906, a new complaint was filed by the provincial fiscal of Rizal, charging Nicolas Arceo with the crime of illegal marriage; the case was proceeded with, and on the 20th of March, 1907, the judge of the district entered judgment, sentencing the accused as guilty of the said crime, by reason of imprudencia temeraria (reckless negligence), to the penalty of one year and eight months imprisonment with costs. From said judgment the accused has appealed.
Article 471 of the Penal Code reads:jgc:chanrobles.com.ph
"Any person who shall contract a second or subsequent marriage without the prior marriage being lawfully dissolved shall be punished with the penalty of prision mayor."cralaw virtua1aw library
From the proceedings it appears proven beyond the least shadow of doubt, that the accused, Nicolas Arceo, being lawfully married to Tranquilina Arcillas since the 3d of February, 1897, and without said marriage being dissolved, since his wife was still living, contracted another marriage on the 1st of May, 1901, with Teodora de Guia, in the presence of the parish priest and witnesses in the town of Tambobong, Province of Rizal, as shown by the canonical certificates which appear in the case.
There is no controversy in the proceedings with regard to the actual commission of the crime The accused himself does not deny it; on the contrary, he acknowledges that he contracted a second marriage in 1901 with Teodora de Guia
The accused pleaded not guilty, and the only question set up by him is that, when he contracted the said second marriage, he did so under the firm belief that his first wife was dead
The evidence in this case conclusively shows that the accused willfully, fraudulently and feloniously violated the law prohibiting bigamy, and contracted a second marriage without having positive and irrefutable proof of the death of his first wife.
The record shows that the accused separated from his wife, Tranquilina Arcillas, on account of their difference in temperament, but no matter how deep and radical may have been his disaffection, taking into consideration the knowledge and enlightenment displayed by the accused, since he defended himself without the assistance of a lawyer, he could never have overlooked the fact that in undertaking a second marriage, when he was not sure of the death of his first wife, a grave affair was at issue, with serious and far reaching consequences to himself, his wife, and their legitimate children, because he was running the risk of violating a prohibitive law and thereby incurring grave penalties But the accused was dominated by a new passion for another woman; he did not hesitate to violate the law by effecting the second marriage with malice and criminal intent, and expose himself to the consequences of his reprehensible act.
If it were true that Arceo sent two persons, Dalmacia Mendoza and Norberto Paras, to the town of Lubao for the purpose of finding out whether his first wife had really died, the letter he had received from his brother-in-law advising him of her death not satisfying him, it would not be unreasonable to conjecture that, considering his indifference toward the mother of his children, the sending of the above-named two persons to obtain the said information was really in order that he might be able to contract his desired second marriage all the sooner.
The best proof that the accused acted, not in good faith, but with malice when he contracted the second marriage, is afforded by the certificate offered in evidence as Exhibit B, issued by the curate of Tambobong This certificate sets forth that when Nicolas Arceo appeared at the parish church of said town, he perverted the truth and told the curate that he was a bachelor and the son of Gonzalo and Alejandra Angeles, of the town of San Fernando, Pampanga If he had acted in good faith, the natural thing for him to have said was that he was a widower, if he really believed that his first wife, Tranquilina Arcillas, was dead. He would likewise have stated that he was the son of Gonzalo Arceo Tan Utco, a Chinese Christian, and of Alejandra San Teco, both residents of the town of Bacolor, in the said province The accused’s false statement was sent by the priest to the bishop in charge of the metropolitan diocese when the application was made in the name of the accused for dispensation waiving the bans, in order that he might contract marriage with the said Teodora de Guia; it was further stated in the communication that Arceo was a bachelor; thus his actual status was concealed, or at least that he was a widower, as he claims to have been at that time.
It is inferred from all of this, that the accused had to deceive the second wife, Teodora de Guia, by inducing her to believe that he was a bachelor or a widower, if it is true that, prior to his marriage, he wore mourning for his first wife, as testified by some of his witnesses; he also deceived the curate of Tambobong by informing him that he was a bachelor because, if he had stated that he was a widower, the curate, in compliance with his duty and canonical rules, would have inquired as to who was his late wife, the place of their marriage and that of the death of the wife; that further he concealed the real citizenship, condition, and residence of his father and mother, who lived, not in San Fernando but in Bacolor, because he knew well enough that, if the only bans that were to be published were to be announced, not in the church of San Fernando but in that of Bacolor, the curate and the residents of Bacolor would undoubtedly become informed that the accused was about to contract another marriage in Tambobong, while his true and lawful wife was still living and perhaps residing at the time in Bacolor Such conduct, on the part of Nicolas Arceo, unquestionably reveals malice and a fraudulent and criminal intent by contracting a second marriage when he positively knew that his lawful wife was not dead.
Deeds similar to the present have unfortunately been frequent of late years, on account of the disturbed state of the country.
The manner in which the lawful wife and her brother Roman Decena acted when testifying in this case, the former forgetting the anomalous conduct of her husband, shows ability and cleverness on the part of the accused, since, notwithstanding the injury inflicted upon the wife and her family, still he managed to induce her and his brother-in-law, out of compassion, to cooperate in his defense in order that he might escape from the hands of law and justice.
The letter written by the brother-in-law informing the husband of the death of his wife, and the explanations given by her and by her brother, the writer, must be presumed to be means craftily selected and planned by the defense to deliver the accused from the penalty incurred by him.
With such exculpatory allegations and this sort of evidence it is not possible to find that Nicolas Arceo contracted a second marriage in good faith, so that his liability may be limited to having committed the crime of bigamy through reckless negligence, as provided for in article 568 of the Penal Code; the contrary is proven by the evidence in the case.
Nicolas Arceo knew that he was attempting to commit an act that could not be justified before honest men; hence, in order to carry it into effect, he endeavored to conceal it from those who knew him, who knew that his own wife was living, and who could have prevented the consummation of the crime, with the circumstance that, even though both his own parents and the father of Tranquilina Arcillas were still living, he did not want to apply to them, especially to his father-in-law, in order to find out with certainty if his first wife had really died in Lubao.
It should be noted that, at the time when the accused intended to contract his second marriage, he was in better and more favorable circumstances than any other resident of San Fernando, with the exception of certain persons in authority, to ascertain whether or not his wife had died in Lubao, a town not far distant in the province, since he was interpreter to the military authorities in San Fernando; and considering his personal conditions, education and intelligence, he should have known that the hearsay information he received from the two persons he sent to Lubao to investigate the death of his wife, any more than the letter he had previously received from his brother-in-law, was not positive proof whereon to base a conviction of her actual death; and, even though the news was received by him with indifference in view of their mutual disaffection and lack of regard, intending, however, as he did, to contract another marriage, it must be assumed that he had a great interest in ascertaining the truth, and he should have employed all diligence in obtaining positive news regarding such death, though it were only in order that he might marry without violating the law; but, instead of using due diligence, such as prudence and common sense would dictate, he contented himself with hearsay news that Dalmacia Mendoza and Norberto Paras brought him, if indeed they made any investigation at all; and the accused, believing that the said hearsay information was sufficient, completed what was wanting by means of false and fraudulent acts in order to carry out his purpose of marrying Teodora de Guia.
As to the nature and character of the entries contained in the parochial books and the certificates thereof issued by the parish priest, it must be stated that the same have not lost their character of public documents for the purpose of proving such acts as are therein referred to, inasmuch as from the time of the change of sovereignty in these Islands to the present day, no law has been enacted abolishing the official and public character of parochial books and entries made therein under the provisions of the former laws; the parish priests continue to be the legal custodians of the parochial books kept during the former sovereignty, and as such they may issue certified copies of the entries contained therein in the same manner as do keepers of archives.
On this assumption, the authenticity of the marriage certificates attached hereto is unquestionable; their legitimacy has been duly established according to law, and, since no proof has been offered to the contrary, they constitute evidence of the crime and of the guilt of the culprit.
With regard to the first error assigned by the defense to the judgment appealed from, that it is no bar to the presentation of a new complaint for the same offense where a case is dismissed on account of the lack of jurisdiction of the court, without remanding the accused to the proper tribunal, and without directing that a new information be filed, it should be born in mind that, in accordance with section 23 of General Orders, No 58, when a court considers or declares itself without jurisdiction, it is not necessary, in order that the case may be reopened, that the filing of a new complaint or information shall be directed, as it is not a question of admitting a demurrer. Therefore, in cases of lack of jurisdiction, the action of the court is null and void, the right of the Government to prosecute a crime subsists, and the action must be tried by the court having jurisdiction thereof Therefore, since no valid trial was held, the accused was not exposed to danger and for this reason counsel for the accused Arceo can not allege the exception of double jeopardy, as in the second error imputed to the trial judge:chanrob1es virtual 1aw library
As to the third error, relative to the fact that the accused was held to be guilty through reckless negligence, it has been demonstrated by the foregoing considerations that Nicolas Arceo contracted a second marriage, not through recklessness, but with malice, bad faith, and the criminal intention of knowingly violating the law prohibiting the crime of bigamy; therefore, he has committed the real and specific crime of illegal marriage, since, notwithstanding the unproven allegations by which he sought to justify himself, the case contains decisive and conclusive evidence to convince one of the guilt of the accused as the responsible author of the crime prosecuted herein.
In the commission of the crime no mitigating nor aggravating circumstance is present; therefore, the penalty prescribed by the said article 471 of the code must be applied in its medium degree.
In view of the foregoing it is our opinion that the judgment appealed from should be reversed, and Nicolas Arceo sentenced, as we hereby sentence him, to the penalty of eight years and one day of prision mayor, to the accessory penalties of article 61 of said code, to indemnify Teodora de Guia in the sum of P300, in accordance with the provisions of article 480 of said code, without subsidiary imprisonment in case of insolvency in view of the serious nature of the penalty, and to pay the costs of both instances So ordered.
Arellano, C.J., Mapa., Carson, Willard and Tracey, JJ., concur.
For this reason a complaint was filed by an assistant prosecuting attorney on the 15th of October, 1903, and proceedings were instituted against Arceo. On the 5th of March, 1904, the court below sentenced the accused to the penalty of seven years of prision mayor, and to suffer the accessory penalties. An appeal was interposed by the accused and by virtue thereof this court rendered a decision on the 27th of March, 1906, 1 setting aside the judgment appealed from and dismissing the case with the costs de oficio, without prejudice (should a new complaint be filed) to a prosecution in accordance with the law in the Court of First Instance of Rizal, the only one having jurisdiction in the matter. This court ordered the said decision to be transmitted to the said lower court and to the Solicitor-General for proper action.
On the 16th of April, 1906, a new complaint was filed by the provincial fiscal of Rizal, charging Nicolas Arceo with the crime of illegal marriage; the case was proceeded with, and on the 20th of March, 1907, the judge of the district entered judgment, sentencing the accused as guilty of the said crime, by reason of imprudencia temeraria (reckless negligence), to the penalty of one year and eight months imprisonment with costs. From said judgment the accused has appealed.
Article 471 of the Penal Code reads:jgc:chanrobles.com.ph
"Any person who shall contract a second or subsequent marriage without the prior marriage being lawfully dissolved shall be punished with the penalty of prision mayor."cralaw virtua1aw library
From the proceedings it appears proven beyond the least shadow of doubt, that the accused, Nicolas Arceo, being lawfully married to Tranquilina Arcillas since the 3d of February, 1897, and without said marriage being dissolved, since his wife was still living, contracted another marriage on the 1st of May, 1901, with Teodora de Guia, in the presence of the parish priest and witnesses in the town of Tambobong, Province of Rizal, as shown by the canonical certificates which appear in the case.
There is no controversy in the proceedings with regard to the actual commission of the crime The accused himself does not deny it; on the contrary, he acknowledges that he contracted a second marriage in 1901 with Teodora de Guia
The accused pleaded not guilty, and the only question set up by him is that, when he contracted the said second marriage, he did so under the firm belief that his first wife was dead
The evidence in this case conclusively shows that the accused willfully, fraudulently and feloniously violated the law prohibiting bigamy, and contracted a second marriage without having positive and irrefutable proof of the death of his first wife.
The record shows that the accused separated from his wife, Tranquilina Arcillas, on account of their difference in temperament, but no matter how deep and radical may have been his disaffection, taking into consideration the knowledge and enlightenment displayed by the accused, since he defended himself without the assistance of a lawyer, he could never have overlooked the fact that in undertaking a second marriage, when he was not sure of the death of his first wife, a grave affair was at issue, with serious and far reaching consequences to himself, his wife, and their legitimate children, because he was running the risk of violating a prohibitive law and thereby incurring grave penalties But the accused was dominated by a new passion for another woman; he did not hesitate to violate the law by effecting the second marriage with malice and criminal intent, and expose himself to the consequences of his reprehensible act.
If it were true that Arceo sent two persons, Dalmacia Mendoza and Norberto Paras, to the town of Lubao for the purpose of finding out whether his first wife had really died, the letter he had received from his brother-in-law advising him of her death not satisfying him, it would not be unreasonable to conjecture that, considering his indifference toward the mother of his children, the sending of the above-named two persons to obtain the said information was really in order that he might be able to contract his desired second marriage all the sooner.
The best proof that the accused acted, not in good faith, but with malice when he contracted the second marriage, is afforded by the certificate offered in evidence as Exhibit B, issued by the curate of Tambobong This certificate sets forth that when Nicolas Arceo appeared at the parish church of said town, he perverted the truth and told the curate that he was a bachelor and the son of Gonzalo and Alejandra Angeles, of the town of San Fernando, Pampanga If he had acted in good faith, the natural thing for him to have said was that he was a widower, if he really believed that his first wife, Tranquilina Arcillas, was dead. He would likewise have stated that he was the son of Gonzalo Arceo Tan Utco, a Chinese Christian, and of Alejandra San Teco, both residents of the town of Bacolor, in the said province The accused’s false statement was sent by the priest to the bishop in charge of the metropolitan diocese when the application was made in the name of the accused for dispensation waiving the bans, in order that he might contract marriage with the said Teodora de Guia; it was further stated in the communication that Arceo was a bachelor; thus his actual status was concealed, or at least that he was a widower, as he claims to have been at that time.
It is inferred from all of this, that the accused had to deceive the second wife, Teodora de Guia, by inducing her to believe that he was a bachelor or a widower, if it is true that, prior to his marriage, he wore mourning for his first wife, as testified by some of his witnesses; he also deceived the curate of Tambobong by informing him that he was a bachelor because, if he had stated that he was a widower, the curate, in compliance with his duty and canonical rules, would have inquired as to who was his late wife, the place of their marriage and that of the death of the wife; that further he concealed the real citizenship, condition, and residence of his father and mother, who lived, not in San Fernando but in Bacolor, because he knew well enough that, if the only bans that were to be published were to be announced, not in the church of San Fernando but in that of Bacolor, the curate and the residents of Bacolor would undoubtedly become informed that the accused was about to contract another marriage in Tambobong, while his true and lawful wife was still living and perhaps residing at the time in Bacolor Such conduct, on the part of Nicolas Arceo, unquestionably reveals malice and a fraudulent and criminal intent by contracting a second marriage when he positively knew that his lawful wife was not dead.
Deeds similar to the present have unfortunately been frequent of late years, on account of the disturbed state of the country.
The manner in which the lawful wife and her brother Roman Decena acted when testifying in this case, the former forgetting the anomalous conduct of her husband, shows ability and cleverness on the part of the accused, since, notwithstanding the injury inflicted upon the wife and her family, still he managed to induce her and his brother-in-law, out of compassion, to cooperate in his defense in order that he might escape from the hands of law and justice.
The letter written by the brother-in-law informing the husband of the death of his wife, and the explanations given by her and by her brother, the writer, must be presumed to be means craftily selected and planned by the defense to deliver the accused from the penalty incurred by him.
With such exculpatory allegations and this sort of evidence it is not possible to find that Nicolas Arceo contracted a second marriage in good faith, so that his liability may be limited to having committed the crime of bigamy through reckless negligence, as provided for in article 568 of the Penal Code; the contrary is proven by the evidence in the case.
Nicolas Arceo knew that he was attempting to commit an act that could not be justified before honest men; hence, in order to carry it into effect, he endeavored to conceal it from those who knew him, who knew that his own wife was living, and who could have prevented the consummation of the crime, with the circumstance that, even though both his own parents and the father of Tranquilina Arcillas were still living, he did not want to apply to them, especially to his father-in-law, in order to find out with certainty if his first wife had really died in Lubao.
It should be noted that, at the time when the accused intended to contract his second marriage, he was in better and more favorable circumstances than any other resident of San Fernando, with the exception of certain persons in authority, to ascertain whether or not his wife had died in Lubao, a town not far distant in the province, since he was interpreter to the military authorities in San Fernando; and considering his personal conditions, education and intelligence, he should have known that the hearsay information he received from the two persons he sent to Lubao to investigate the death of his wife, any more than the letter he had previously received from his brother-in-law, was not positive proof whereon to base a conviction of her actual death; and, even though the news was received by him with indifference in view of their mutual disaffection and lack of regard, intending, however, as he did, to contract another marriage, it must be assumed that he had a great interest in ascertaining the truth, and he should have employed all diligence in obtaining positive news regarding such death, though it were only in order that he might marry without violating the law; but, instead of using due diligence, such as prudence and common sense would dictate, he contented himself with hearsay news that Dalmacia Mendoza and Norberto Paras brought him, if indeed they made any investigation at all; and the accused, believing that the said hearsay information was sufficient, completed what was wanting by means of false and fraudulent acts in order to carry out his purpose of marrying Teodora de Guia.
As to the nature and character of the entries contained in the parochial books and the certificates thereof issued by the parish priest, it must be stated that the same have not lost their character of public documents for the purpose of proving such acts as are therein referred to, inasmuch as from the time of the change of sovereignty in these Islands to the present day, no law has been enacted abolishing the official and public character of parochial books and entries made therein under the provisions of the former laws; the parish priests continue to be the legal custodians of the parochial books kept during the former sovereignty, and as such they may issue certified copies of the entries contained therein in the same manner as do keepers of archives.
On this assumption, the authenticity of the marriage certificates attached hereto is unquestionable; their legitimacy has been duly established according to law, and, since no proof has been offered to the contrary, they constitute evidence of the crime and of the guilt of the culprit.
With regard to the first error assigned by the defense to the judgment appealed from, that it is no bar to the presentation of a new complaint for the same offense where a case is dismissed on account of the lack of jurisdiction of the court, without remanding the accused to the proper tribunal, and without directing that a new information be filed, it should be born in mind that, in accordance with section 23 of General Orders, No 58, when a court considers or declares itself without jurisdiction, it is not necessary, in order that the case may be reopened, that the filing of a new complaint or information shall be directed, as it is not a question of admitting a demurrer. Therefore, in cases of lack of jurisdiction, the action of the court is null and void, the right of the Government to prosecute a crime subsists, and the action must be tried by the court having jurisdiction thereof Therefore, since no valid trial was held, the accused was not exposed to danger and for this reason counsel for the accused Arceo can not allege the exception of double jeopardy, as in the second error imputed to the trial judge:chanrob1es virtual 1aw library
As to the third error, relative to the fact that the accused was held to be guilty through reckless negligence, it has been demonstrated by the foregoing considerations that Nicolas Arceo contracted a second marriage, not through recklessness, but with malice, bad faith, and the criminal intention of knowingly violating the law prohibiting the crime of bigamy; therefore, he has committed the real and specific crime of illegal marriage, since, notwithstanding the unproven allegations by which he sought to justify himself, the case contains decisive and conclusive evidence to convince one of the guilt of the accused as the responsible author of the crime prosecuted herein.
In the commission of the crime no mitigating nor aggravating circumstance is present; therefore, the penalty prescribed by the said article 471 of the code must be applied in its medium degree.
In view of the foregoing it is our opinion that the judgment appealed from should be reversed, and Nicolas Arceo sentenced, as we hereby sentence him, to the penalty of eight years and one day of prision mayor, to the accessory penalties of article 61 of said code, to indemnify Teodora de Guia in the sum of P300, in accordance with the provisions of article 480 of said code, without subsidiary imprisonment in case of insolvency in view of the serious nature of the penalty, and to pay the costs of both instances So ordered.
Arellano, C.J., Mapa., Carson, Willard and Tracey, JJ., concur.
Endnotes:
1. 6 Phil. Rep., 29.
