[ G.R. No. 11847. February 01, 1918 ] 37 Phil. 515
[ G.R. No. 11847. February 01, 1918 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. GELASIO TABIANA AND JULIAN CANILLAS, DEFENDANTS AND APPELLANTS. D E C I S I O N
STREET, J.:
This is an appeal from a decision of the Court of First Instance of the Province of Iloilo convicting the defendants upon the charge of attack upon agents of public authority, in violation of article 249, Penal Code, in connection with the second subsection of article 250, Penal Code. The offense is alleged to have been committed in the municipality of Leon, Iloilo, upon the 23d day of February, 1915.
At the time of the acts giving rise to this prosecution the defendant Gelasio Tabiana was a well-respected citizen of the municipality of Leon, was a member of the municipal council, and had twice served as municipal president. He was also at the time a candidate for reelection to the latter office. The defendant Julian Canillas was also a public officer, occupying the position of justice of the peace of the municipality. The two men were brothers-in-law and occupied the same house. On the morning of the date above-mentioned, a neighbor of Gelasio Tabiana had appeared before Julian Canillas, justice of the peace, and had procured from him a warrant for the arrest of Tabiana and his herdsman upon the charge of a trivial misdemeanor, consisting of an alleged trespass committed upon the complainant’s premises by Tabiana’s cattle. The defendant Tabiana was subsequently acquitted upon this charge; but the offense which was the subject of prosecution in the present case had its origin in circumstances connected with the arrest under that warrant.
The acts which are the subject of the charge in this case occurred about 8 o’clock p. m. in the tienda of the defendant Tabiana, which is located under the apartments occupied by him and Julian Canillas as a residence. Some reference, however, to things which occurred earlier in the day is necessary.
The warrant for the arrest of Tabiana and his herdsman was placed in the hands of two policemen, Emiliano Callado and Baltazar Cabilitasan, who found the defendant Tabiana about 4 p.m. out in the country. The defendant showed some irritation and instead of coming, in at once told the policemen that he would come in later and report at the municipal building with his herdsman, the other defendant named in the warrant. The policemen consented, subject to the approval of the chief of police, and went away. At 6 p. m., the defendant not having appeared at the municipal building, the policemen were directed by the chief to find him and have him come to the municipal building in obedience to the warrant. The policemen then proceeded to the defendant’s house where they found him in the company of friends. When the policemen announced their errand Tabiana showed further resentment over the idea of being arrested but yielded and started to the municipal building with the two policemen. In passing near the market place Tabiana detached himself from the custody of the policemen without their consent and entered the market. The policemen appear to have been considerate and respectful to Tabiana and, instead of following the defendant into the market, they waited about half an hour, at the end of which time they went into the market and found Tabiana with some of his friends. As Callado, one of the policemen, approached the defendant the latter arose and asked for the warrant saying. “Unless you show me the warrant of arrest I shall not go with you.” Callado drew the warrant from his pocket; and as he showed it to the defendant the latter took it, looked at it,’ and put it into his pocket. After that he said, “Come along” and gave the policeman a push, as did also more than one other of Tabiana’s friends.
The party then repaired to the municipal building but as it was getting late, the chief of police and other officials were gone. This had the effect of further angering Tabiana, and the result was that while one of the policemen ran to find the chief of police, Tabiana and his friends left the municipal building, saying that they were going to find the justice of the peace, the idea being to find somebody who could set the defendant at liberty on bail. As the justice of the peace lived with Tabiana, they of course directed themselves towards Tabiana’s residence. It may be considered that their departure from the municipal building was effected with the consent of the policemen.
Presently, however, the chief of police arrived at the municipal building, and learning what had taken place, he dispatched the two policemen already mentioned and a third named Leon Cajilig to go after Tabiana and procure the return of the warrant of arrest and to insist that Tabiana should come down at once so that the matter could be finished, or as another witness expressed it, to bring him (meaning Tabiana) to the police station.
When the policemen arrived they found Tabiana in his tienda, with a number of friends on hand. When he was requested to give up the warrant and go to the police station he denied having taken the warrant; and one of Tabiana’s friends upstairs called out, “If he has no warrant send him up for a beating.” Tabiana then approached the policeman, Callado, and hit him in the breast with his hand or fist, at which instant the policeman seized him by the wrist and resistance ceased. As the policeman started to carry the prisoner away two bystanders interfered and took him away from the policeman. By this time Julian Canillas, the justice of the peace, had arrived on the scene and being evidently excited, he hit Callado on the back, when he too was stopped by another policeman. Meanwhile Tabiana seems to have retired to his apartment, and Julian Canillas directing himself to the policeman said, “Go back to the municipal building and tomorrow you will take those clothes off,” referring to the uniforms worn by the policemen. Canillas also appears to have spoken other excited words little comporting with the dignity and duties of his office. The policemen then went away, which may be attributed not only to the command of the justice of the peace but also to the fact that some of Tabiana’s friends indicated a determination to fight if the policemen should persist in their purpose of arresting Tabiana. We do not believe that Tabiana should be held responsible for these menaces, nor for anything that occurred after he was taken in hand by the policeman, as his active resistance had then ceased.
At the beginning of this altercation the defendant Tabiana may have entertained the idea that inasmuch as the warrant of arrest had been gotten out of the hands of Callado the authority of the latter to effect the arrest had thereby ended. This of course was a mistake, as Tabiana then had the warrant wrongfully in his own possession, and he cannot be permitted to take advantage of the fact that he was withholding it from the officer charged with its execution.
From the proofs of record we are convinced that everything done by Tabiana upon this occasion is properly referable to the idea of resistance and grave disobedience. We discern in his conduct no such aggression as accompanies the determination to defy the law and its representative at all hazards. Upon the previous occasions of his contact with the policemen on this day, Tabiana yielded, though with bad grace; and it is evident that he would, upon this occasion, have, gone to the police station again if it had not been for the acts of others in rescuing him, and for the intervention of the justice of the peace, who ordered the policemen to desist.
Upon the whole we find the defendant Tabiana guilty of resistance and serious disobedience to public authority under article 252, Penal Code, and not of the more serious offense indicated in subsection 2 of article 249, Penal Code, which was applied by the Court of First Instance. The question whether an offense consists of simple resistance or of grave resistance is to be determined with a view to the gravity of the act proved and the particular conditions under which committed. In considering this question reference should also be had to the nature and extent of the penalties attached by the authors of the Code to the different offenses. Thus, when it is observed that the offense indicated in article 249 carries with it a penalty ranging from prision correccional to prision mayor in its minimum degree, with corresponding fines, it is obvious that the lawmaker here had in mind serious offenses, characterized in part at least by the spirit of aggression directed against the authorities or their agents. It should be observed that the circumstances mentioned in subsections 1 to 4 of article 250 are not qualifications of the definition contained in article 249 but are aggravating circumstances which are to be used in the application of the penalties. This means that the mere fact that an offense of resistance happens to be characterized by some circumstance mentioned in one of these subsections does not necessarily determine that the offense falls within the definition contained in article 249. It is obvious, for instance, that a Government functionary may commit an offense under article 252 as well as under article 249; and the relative gravity of the offense determines whether it falls under the one article or the other.
The greatest hesitancy which we have felt in applying article 252 instead of article 249 to this case arises from the words “shall employ force against them” (emplearen fuerza contra ellos) contained in article 249. These words, taken without reference to the context, would seem to make absolutely necessary the application of article 249 in every case where any degree of force is exerted. We believe, however, that the words quoted are to be understood as applying to force of a more serious character than that employed in the present instance. We are led to this conclusion not only because of the grave penalty attached, as indicated above, but for the further reason that the Code mentions grave resistance further on in the same paragraph and also makes special provision for the offense of simple resistance in article 252. Now practically and rationally considered in connection with the subject of arrest, resistance is impossible without the employment of some force. A man may abscond or evade or elude arrest, or may disobey the commands of an officer without using force but he cannot resist without using force of some kind or in some degree. If at the ultimate moment no force is employed to resist, there is not resistance but submission ; and if it had been intended that every manifestation of force, however slight, against the authorities and their agents should bring the case under article 249, it was an idle waste of words to make other provisions to cover grave resistance and simple resistance. It therefore seems reasonable to hold that the words in article 249 relating to the employment of force are in some degree limited by the connection in which they are used and are less peremptory than they at first seem. Reasonably interpreted they appear to have reference to something more dangerous to civil society than a simple blow with the hands at the moment a party is taken into custody by a policeman.
As to the defendant Julian Canillas we find that he participated in the offense committed on this occasion, knowing that the defendant Tabiana was liable to arrest under the warrant issued by himself; and he is therefore punishable in the same manner.
The judgment of the court below is therefore modified and each of the defendants is sentenced to two months and one day of arresto mayor, and to pay a fine of “P125, with the accessory penalties and subsidiary imprisonment in case of insolvency, as provided by law, with costs against the appellants. So ordered.
Arellano, C. J., Johnson, Carson, and Fisher, JJ., concur.
Torres, J., did not sit in the case, but is of the opinion that the councilor should be convicted and the justice of the peace acquitted.