[ G. R. No. 45186. September 30, 1936 ] 63 Phil. 530
[ G. R. No. 45186. September 30, 1936 ]
THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. JOSEPINA BANDIAN, DEFENDANT AND APPELLANT. D E C I S I O N
DIAZ, J.:
Charged with the crime of infanticide, convicted thereof and sentenced to reclusion perpetua and the corresponding accessory penalties, with the costs of the suit, Josefina Bandian appealed from said sentence alleging that the trial court erred:
“I. In taking into consideration, to convict her, her alleged admission to Dr. Nepomuceno that she had thrown away her newborn babe, and “II. In holding her guilty of infanticide, beyond a reasonable doubt, and in sentencing her to reclusion perpetua, with costs.”
The facts of record may be summarized as follows: At about 7 o’clock in the morning of January 31, 1936, Valentin Aguilar, the appellant’s neighbor, saw the appellant go to a thicket about four or five brazas from her house, apparently to respond to a call of nature because it was there that the people of the place used to go for that purpose. A few minutes later, he again saw her emerge from the thicket with her clothes stained with blood both in the front and back, staggering and visibly showing signs of not being able to support herself. He ran to her aid and, having noted that she was very weak and dizzy, he supported and helped her go up to her house and placed her in her own bed. Upon being asked before Aguilar brought her to her house, ‘what had happened to her, the appellant merely answered that she was very dizzy. Not wishing to be alone with the appellant in such circumstances, Valentin Aguilar called Adriano Comcom, who lived nearby, to help them, and later requested him to take bamboo leaves to stop the hemorrhage which had come upon the appellant. Comcom had scarcely gone about five brazas when he saw the body of newborn babe near a path adjoining the thicket where the appellant had gone a few moments before. Comcom informed Aguilar of it and the latter told him to bring the body to the appellant’s house. Upon being asked whether the baby which had just been shown to her was hers or not, the appellant answered in the affirmative. Upon being notified of the incident at 2 o’clock in the afternoon of said day, Dr. Emilio Nepomuceno, president of the sanitary division of Talisayan, Oriental Misamis, went to the appellant’s house and found her lying in bed still bleeding. Her bed, the floor of her house and beneath it, directly under the bed, were full of blood. Basing his opinion upon said facts, the physician in question declared that the appellant gave birth in her house and in her own bed; that after giving birth she threw her child into the thicket to kill it for the purpose of concealing her dishonor from the man, Luis Kirol, with whom she had theretofore been living maritally, because the child was not his but of another man with whom she had previously had amorous relations. To give force to his conclusions, he testified that the appellant had admitted to him that she had killed her child, when he went to her house at the time and on the date above-stated. The prosecuting attorney and the lower court giving absolute credit to Dr. Nepomuceno whose testimony was not corroborated but, on the contrary, was contradicted by the very witnesses for the prosecution and by the appellant, as will be stated later, they were of the opinion and the lower court furthermore held, that the appellant was an infanticide. The Solicitor-General, however, does not agree with both. On the contrary, he maintains that the appellant may be guilty only of abandoning a minor under subsection 2 of article 276 of the Revised Penal Code, the abandonment having resulted in the death of the minor allegedly abandoned. By the way, it should be stated that there is no evidence showing how the child in question died. Dr. Nepomuceno himself affirmed that the wounds found on the body of said child were not caused by the hand of man but by bites of animals, the pigs that usually roamed through the thicket where it was found. Infanticide and abandonment of a minor, to be punishable, must be committed wilfully or consciously, or at least it must be the result of a voluntary, conscious and free act or omission. Even in cases where said crimes are committed through mere imprudence, the person who commits them, under said circumstance, must be in the full enjoyment of his mental faculties, or must be conscious of his acts, in order that he may be held liable. The evidence certainly does not show that the appellant, in causing her child’s death in one way or another, or in abandoning it in the thicket, did so wilfully, consciously or imprudently. She had no cause to kill or abandon it, to expose it to death, because her affair with a former lover, which was not unknown to her second lover, Luis Kirol, took place three years before the incident; her married life with Kirol—she considers him her husband as he considers her his wife—began a year ago; as he so testified at the trial, he knew that the appellant was pregnant and he believed from the beginning, affirming such belief when he testified at the trial, that the child carried by the appellant in her womb was his, and he testified that he and she had been eagerly waiting for the birth of the child. The appellant, therefore, had no cause to be ashamed of her pregnancy to Kirol. If to the foregoing .facts is added the testimony of the witnesses Valentin Aguilar and Adriano Comcom that the child was taken from the thicket and carried already dead to the appellant’s house after the appellant had left the place, staggering, without strength to remain on her feet and very dizzy, to the extent of having1 to be as in fact she was helped to go up to her house and to lie in bed, it will clearly appear how far from the truth were Dr. Nepomuceno’s affirmation and conclusions. Also add to all these the fact that the appellant denied having made any admission to said physician and that from the time she became pregnant she continuously had fever. This illness and her extreme debility undoubtedly caused by her long illness as well as the profuse hemorrhage which she had upon giving birth, coupled with the circumstance that she is a primipara, being then only 23 years of age, and therefore inexperienced as to childbirth and as to the inconvenience or difficulties usually attending such event; and the fact that she, like her lover Luis Kirol—a mere laborer earning only twenty-five centavos a day—is uneducated and could not supplant with what she had read or learned from books what experience itself could not teach her, undoubtedly were the reasons why she was not aware of her childbirth, or if she was, it did not occur to her or she was unable, due to her debility or dizziness, which causes may be considered lawful or insuperable to constitute the seventh exempting circumstance (art. 12, Revised Penal Code), to take her child from the thicket where she had given it birth, so as not to leave it abandoned and exposed to the danger of losing its life. The act performed by the appellant in the morning in question, by going into the thicket, according to her, to respond to call of nature, notwithstanding the fact that she had fever for a long time, was perfectly lawful. If by doing so she caused a wrong as that of giving birth to her child in that same place and later abandoning it, not because of imprudence or any other reason than that she was overcome by strong dizziness and extreme debility, she should not be blamed therefor because it all happened by mere accident, with no fault or intention on her part. The law exempts from liability any person who so acts and behaves under such circumstances (art. 12, subsection 4, Revised Penal Code). In conclusion, taking into account the foregoing facts and considerations, and granting that the appellant was aware of her involuntary childbirth in the thicket and that she later failed to take her child therefrom, having been so prevented by reason of causes entirely independent of her will, it should be held that the alleged errors attributed to the lower court by the appellant are true; and it appearing that under such circumstances said appellant has the fourth and seventh exempting circumstances in her favor, she is hereby acquitted of the crime of which she had been accused and convicted, with costs de oficio, and as she is actually confined in jail in connection with this case, it is ordered that she be released immediately. So ordered. Avanceña, C. J., and Abad Santos, J., concur.