[ CA-No. 227. February 01, 1946 ] 76 Phil. 72
[ CA-No. 227. February 01, 1946 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. LEON CASTILLO ET AL., ACCUSED. NENA TANALEGA RAYMUNDO, ACCUSED-APPELLANT.
DE JOYA, J.:
Defendant-appellant Nena Tanalega Raymundo was accused of the crime of frustrated murder by poisoning through reckless imprudence, in the Court of First Instance of Laguna, under the following information:
“The undersigned Acting Provincial Fiscal accuses Dr. Leon Castillo and Mrs. Nena Tanalega Raymundo of the crime of ‘FRUSTRATED MURDER BY POISONING THROUGH RECKLESS IMPRUDENCE,’ committed as follows: “That on or about the 18th day of February, 1941, in San Pablo City, Commonwealth of the Philippines, and within the jurisdiction of this Honorable Court, Mr. Silvino Belarmino presented for dispensation at the Escudero Drug Store and bought one-third formula of the following prescription of Dr. Antonio G. Sison, to wit:@
“Sparteinsulphate
………………………………………………………………..
1.00
“Phenobarbital
…………………………………………………………………
0.50
“Carbromal
…………………………………………………………………
5.00
“Mx. Div. et pone in cap. No. XV “Sig.; One capsule once a day
“Dr. Leon Castillo and Mrs. Nena Tanalega Raymundo mutually helped each other prepare and dispense the said prescription, but instead of mixing the required proportion of Spartein Sulphate, through carelessness and reckless imprudence, willfully, unlawfully and feloniously, they mixed and compounded in the formula a toxic dose of Strychnine Sulphate, which is a poisonous substance, and as a result of such carelessness and imprudence, Mr. Belarmino, upon taking one capsule of the medicine on the very same day, was poisoned and would have died, had it not been for causes independent of the will of the accused; that had the act committed by the accused been intentional it would constitute the crime of frustrated murder. “Contrary to law. “Santa Cruz, Laguna, September 12, 1941.”
After the corresponding trial, the Honorable Jose Ma. Paredes, presiding judge of the Court of First Instance of Laguna, on October 12, 1942, rendered judgment, finding said accused guilty of the crime of frustrated homicide through reckless imprudence, and sentenced her to suffer four (4) months of arresto mayor and to pay the costs of the proceedings, at the same time acquitting her co-accused Dr. Leon Castillo. The private prosecution has reserved the right to file a separate civil action, and consequently the complainant did not present any evidence as to any damage he might have suffered by reason of the alleged negligence of the accused. The accused, Nena Tanalega Raymundo, appealed from said decision to the Court of Appeals of Southern Luzon, claiming that the trial court had erred—
“1. In holding that a frustrated felony can be committed through reckless imprudence. “2. In holding that a felony committed through reckless imprudence can exist when no material damage has been caused. “3. In holding that a felony committed through reckless imprudence can exist when the relation of proximate cause to effect has not been proved. “4. In holding that the complaining witness had taken strychnine sulphate. “5. And in holding that defendant and appellant had dispensed strychnine sulphate.”
After the corresponding hearing, on June 10, 1944, the Court of Appeals of Southern Luzon, in a decision penned by Justice Rufino Luna, concurred in by Associate Justices Fernando Jugo and Jose 0. Vera, found the defendant and appellant Nena Tanalega Raymundo guilty of slight physical injuries through reckless imprudence, and sentenced her to pay a fine of two hundred pesos (P200) and to pay the costs. The Court of Appeals deemed it unnecessary to pass upon the defense of prescription urged by defendant and appellant, stating that the offense of which she was found guilty and the penalty imposed upon her are correctional in nature. Having been duly notified of said decision of the Court of Appeals, defendant and appellant Nena Tanalega Raymundo, on June 21, 1944, filed a motion for the reconsideration of said decision, on the following grounds:
“1. That under the law there is no such thing as a correctional offense. “2. That the light offense found by the Court of Appeals had already prescribed. “3. That the prescription of the offense in question is not affected by the qualification correctional of the fine imposed. “4. That the penalty imposed is not correction. “5. That in case of doubt as to the law applicable to determine the question of prescription, the accused should be given the benefit of such doubt. “6. That under the law the prescription of the offense and the prescription of the penalty are separate and distinct. “7. That defendant and appellant has been found guilty of an alleged offense which does not exist under our law. “8. That defendant and appellant has been sentenced, without due process of law, that is, for an offense not specified in the information. ‘‘9. That there is no evidence, beyond reasonable doubt, that the ailments suffered by the offended party, were due to the capsules purchased from the drug store in question. “10. That the best evidence available was not secured, and very much less presented. “11. The pecuniary interest of the offended party. “12. That it has not been shown beyond reasonable doubt that the accused had given strychnine.”
The evidence, testimonial and documentary, presented by the parties in the trial court, has satisfactorily established the following facts: That for sometime prior to the filing of the information in this case on September 12, 1941, the complaining witness, Silvino Belarmino, had been suffering from a certain disease, for which Dr. Antonio G. Sison prescribed the following medicine: “Spartein sulphate ………………………………………………………………… 1.00 “Phenobarbital ………………………………………………………………… 0.50 “Carbromal ………………………………………………………………… 5.00 “Mx. Div. et pone in cap. No. XV “Sig.; one capsule once a day.” Belarmino presented the prescription to the Universal Drug Store, in the City of Manila, where he secured the medicine described therein contained in a bottle (Exhibit C) on which the prescription was written, and after taking said medicine his health was somewhat improved. When the symptoms of the said disease recurred, following the instructions given him by Doctor Sison to continue taking said medicine, he copied said prescription (Exhibit 2), and, in the morning of February 18, 1941, presented it to the Escudero Drug Store, in the City of San Pablo, Laguna, and asked Dr. Leon Castillo, the manager of the said drug store, and a friend of the complainant, whether they could prepare said medicine, after having failed to secure the same in other drug stores in the locality; and having been answered in the affirmative, the complaining witness requested Doctor Castillo to have prepared for him of the formula and Doctor Castillo himself wrote “1/3 f.” on Exhibit 2, for P1, as the whole formula cost P3; as there was some doubt as to the figure appearing after the word “carbromal” on Exhibit 2, Belarmino requested Doctor Castillo to check it up, and the latter corrected the said figure by writing the figure “5” in ink in the figure “6” appearing after the word “carbromal.” As Belarmino himself wanted to be sure about said figure, he proposed to return to said drug store in the afternoon with the bottle marked Exhibit C, on which the prescription was written ; and in fact he returned at about 2 o’clock in the afternoon of the same day. The pharmacist, Saturnino Gesmundo Cortes, of said drug store, was then in his house, and Doctor Castillo sent for defendant-appellant Nena Tanalega Raymundo, who was employed in said drug store as pharmacy clerk. Mrs. Raymundo was already a pharmacy graduate, but she had not yet taken and passed the government examination conducted by the Board of Pharmaceutical Examiners; and she had worked as a pharmacy clerk in different drug stores in the City of Manila, before her employment in the same capacity in the Escudero Drug Store in the City of San Pablo. Before the arrival of the defendant and appellant, Doctor Castillo, took two bottles from the shelves and a cardboard box and placed them on the dispensation table. Mrs. Raymundo then prepared the balance and began computing the formula contained in Exhibit 2 to reduce it to 1/3 after which she proceeded to compound the medicine, using, among others, the sub-stances contained in said two bottles. The medicine compounded by defendant and appellant was placed in five (5) capsules and was delivered by Doctor Castillo to herein complainant contained in a cardboard box (Exhibit B), for which he paid P1, as previously agreed upon with Dr. Leon Castillo, manager of the Escudero Drug Store; that at about 5 o’clock in the afternoon of the same day, February 18, 1941, the complainant took one of the capsules with a glass of water, and left his house for a walk; and about 20 minutes after he had taken said medicine, he became ill. He felt dizzy and had difficulty in breathing, and he could hardly stand as his knees became shaky, and for that reason, he immediately consulted two physicians, namely, Dr. Felisa Celestino and Dr. Ricardo Reyes, and the latter advised him to go home and rest. About two hours afterwards, complainant’s legs began to stiffen, his stomach to harden, his lips to draw back, and his ’tongue to shrink to his throat, and he could not talk and thought that he was in a serious condition; and so complainant’s family sent for Dr. Ricardo Reyes, who advised complainant’s wife to rub his body with hot water which produced some relief, after he had urinated; and the following day when Doctor Reyes returned, complainant explained to him all that had happened and showed him the remaining four capsules contained in the cardboard box, marked as Exhibit B, on which the prescription had not been written, and Doctor Reyes advised the complainant not to take any more of said remaining four capsules. That believing that there must have been something wrong with the medicine which he had purchased from the Escudero Drug Store, on February 24, 1941, the complaining witness sent two of the four capsules (Exhibits E-2 and E-3) to the Bureau of Science for examination, and their contents were examined and analyzed by Eusebio Gutierrez, a chemist of the Institute of Hygiene, at the instance of the Board of Pharmaceutical Examiners, and said chemist submitted a report on the analysis made by him (Exhibit D), dated March 15, 1941, in which it was shown that the filling prescription Exhibit 2, defendant and appellant had erroneously used and mixed, instead of spartein sulphate as called for in the prescription (Exhibits C and 2), strychnine sulphate, a highly poisonous substance—50.5 milligrams in one and 61.75 milligrams in the other. On March 26, 1941, the complainant came to the City of Manila and again consulted Dr. Antonio G. Sison, informing the latter of the medicine purchased by him from the Escudero Drug Store, consisting of 1/3 formula, contained in five (5) capsules, and that he had taken one of said capsules with a glass of water, and that about 25 minutes after he became ill, mentioning to Doctor Sison the symptoms already described above, and said physician informed him then that he had been a victim of poisoning. It has also been shown by expert testimony presented in this case that herein complainant had been a victim of strychnine poisoning and that 50.5 milligrams of strychnine sulphate found in one of the capsules examined was sufficient to cause the death of herein complainant, if not for the fact that, in compounding said prescription, phenobarbital and carbromal had been mixed therewith, in the quantities specified in the prescription, which two substances diminished the deadly effect of strychnine sulphate as poison. Having thus secured the necessary data, upon which to base a criminal action against the employees of the Escudero Drug Store, on September 12, 1941, herein complainant caused the filing of the information transcribed above, against Dr. Leon Castillo and herein defendant and appellant Nena Tanalega Raymundo, as manager and pharmacy clerk of the Escudero Drug Store, respectively. The pharmacist of said drug store, Saturnino Gesmundo Cortes, was not included in the information, because he was not in the drug store at the time that the said prescription was compounded, although it had always been the practice in said drug store for the pharmacist to be present every time herein defendant and appellant compounded any prescription, as pharmacy clerk. The foregoing facts have been sufficiently established by the evidence adduced during the trial of the case. As already stated, the Court of First Instance of Laguna acquitted Dr. Leon Castillo, manager of the Escudero Drug Store, of the crime charged in the information, on the ground of reasonable doubt, but found herein defendant and appellant, Nena Tanalega Raymundo, guilty of the crime of frustrated homicide through reckless imprudence. In view of the facts stated above, said judgment of conviction is untenable, on the ground that the offense of frustrated homicide requires the concurrence of the essential requisite of intent to kill, which is incompatible with the charge of reckless imprudence; although a charge for physical injuries, serious or less serious, through reckless imprudence, is legally proper under the law; as in that case the act sought to be punished is the material damage or injury actually done. (Sentencia de 15 de diciembre, 1883, Gaceta de 13 de marzo de 188 U; 7 Viada, 5.” ed., pdgs. 69, 70.) In the case at bar, the Court of Appeals modified the decision of the trial court, and concluded that the offense committed by the defendant and appellant Nena Tanalega Raymundo was slight physical injuries through reckless imprudence, and imposed upon her a fine of P200 and to pay the costs. In the motion for reconsideration filed by counsel for defendant and appellant, it is claimed that there is no sufficient basis for such a judgment, on the ground, among others, that no evidence has been adduced to show the nature or extent of the injury, if any, sustained by the complaining witness, and whether such injury, if any, had been caused by the drug or medicine sold to him by the Escudero Drug Store, as no specimen had been taken from the contents of the stomach of the complainant for chemical examination and analysis; and that it has not been possible, of course, to make any examination of the stomach of the complainant. Furthermore, counsel for defendant and appellant contends that, even admitting for the sake of argument, that the offense, of slight physical injuries through reckless imprudence were imputable to herein defendant and appellant, the corresponding action should have been instituted against her within the period of two (2) months as prescribed under article 90 of the Revised Penal Code; and that the alleged offense having been committed on February 18, 1941, and the corresponding information having been filed seven (7) months afterwards, to wit, September 12, 1941, the corresponding criminal action had already prescribed. The legal question raised by counsel for defendant and appellant appears to be quite plausible, and defendant and appellant would appear to be entitled to a judgment of acquittal, under the Revised Penal Code. On the other hand, human health is a most precious thing, and human life is most sacred. When a person gets sick or feels sick, he goes to, or sends for, a physician for consultation and treatment, so that he may secure the proper remedy for his malady. The physician, after a careful examination of the patient and study of the symptoms manifested, prescribes the treatment and remedy, which he deems most appropriate for the patient to give him relief, and orders the necessary medicine. When the patient goes to a drug store to secure or buy the medicine prescribed by his physician, he has the right to expect that the medicine so prescribed will be given to him, as it is the plain duty of each and everyone, whether a pharmacist or a pharmacy clerk, to give to the patient or purchaser the drug or medicine called for in the prescription. Said pharmacist or pharmacy clerk does not live up to this standard, when he gives one medicine for another, or delivers an adulterated medicine or drug, thus endangering the life and health of the patient or purchaser; and when they do so, said pharmacist and pharmacy clerk act in their peril. The law cannot countenance or tolerate or condone any negligence or act of negligence on their part. It so happens that the information filed in this case is a detailed one, reproducing the prescription (Exhibits 2 and C) given to the complainant by Dr. Antonio G. Sison; but when it was filled and the medicine compounded in the Escudero Drug Store by defendant and appellant, the result of its analysis did not tally with said prescription, as shown by the report submitted by the Institute of Hygiene marked as Exhibit D. Section 751 of the Revised Administrative Code (1940 ed.) provides as follows:
“SEC. 751. Responsibility for quality of drugs.—Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines, and poisons he may sell or keep for sale; and t shall be unlawful for any person whomsoever to manufacture, prepare, sell, or administer any prescription, drug, chemical, medicine, or poison under any fraudulent name, direction, pretense or to adulterate any drug, chemical, medicine, or poison so used, sold, or offered for sale. Any drug, chemical, medicine, or poison shall be held to be adulterated or deteriorated within the meaning of this section if it differs from the standard of quality or purity given in the United States Pharmacopoeia.”
And the violation of any provision contained in said section 751 of the Revised Administrative Code (1940 ed.) is punished in accordance with the provisions of section 2676 thereof, which are as follows:
“SEC. 2676. General Violation of Pharmacy Law.—Any person engaging in the practice of pharmacy in the (Philippine Islands)Philippines contrary to any provision of the Pharmacy Law or violating any provision of said law for which no specific penalty is X provided shall, for each offense, be punished by a fine not to exceed five hundred pesos, or by imprisonment for not more than six months, or both, in the discretion of the court.”
Numerous American decisions have laid down salutary rules for the protection of human life and human health, some of which have been cited with approval by this Court in a similar case. The profession of pharmacy demands care and skill; and druggists must exercise care of a specially high degree, the highest degree of care known to practical men. In other words, druggist must exercise the highest practicable degree of prudence and vigilance, and the most exact and reliable safeguards consistent with the reasonable conduct of the business, so that human life may not constantly be exposed to the danger flowing from the substitution of deadly poisons for harmless medicines. (Tombari vs. Connors [1912], 85 Conn., 235.) A druggist that sells to a purchaser or sends to a patient one drug for another or even one innocent drug, calculated to produce a certain effect, in place of another sent for y and designed to produce a different effect, cannot escape responsibility, upon the alleged pretext that it was an accidental or an innocent mistake. His mistake, under the most favorable aspect for himself, is negligence. And such mistake cannot be countenanced or tolerated, as it is a mistake of the gravest kind and of the most disastrous effect. (Fleet vs. Hollenkemp [1852], 56 Am. Dec, 563.) One holding himself out as competent to handle such drugs, and having rightful access to them, and relied upon by those dealing with him to exercise that high degree of caution and care called for by the peculiarly dangerous nature of the business, cannot be heard to say that his mistake by which he furnishes a customer the most deadly of drugs for those comparatively harmless, is not in itself gross negligence. (Smith’s Admrx. vs. Middelton [1902], 56 L. R. A., 484.) In reality, for the druggist, mistake is negligence and care is no defense. And in Criminal Law, run the same rigorous rules. Apothecaries, or apothecary clerks, who are guilty of negligence in the sale of medicine when death ensues in consequence, have been held guilty of manslaughter. (Tessymond’s Case [1828], 1 Lewin, C. C, 169.) United States vs. Pineda, 37 Phil. 456, 458. The delivery of one drug for another has been declared punishable in this jurisdiction. In a case in which the complainant asked for potassium chlorate, but received from the druggist barium chlorate, this Court declared that such act was tantamount to giving or dispensing medicine under a fraudulent name; and notwithstanding the fact that the potassium chlorate demanded and paid for was much cheaper than the barium chlorate which was actually delivered by the druggist, the latter was held criminally responsible, and punished, in accordance with the provisions contained in said section 751 of the Revised Administrative Code, in connection with the provisions of section 2676 thereof, declaring that defendant had sold a drug under a fraudulent name. (United States vs. Pineda, 37 Phil., 456.) In the Pineda case, the potassium chlorate demanded by the complainant had been intended for his race horses; and when the complainant mixed with water what he thought and believed was potassium chlorate, but which turned out to be barium chlorate, which is poisonous, his race horses died from poisoning a few hours after having drunk water in which barium chlorate had been dissolved and mixed. The wisdom of such a decision is unquestionable. If the victims had been human beings instead of horses, the damage and loss would have been irreparable. It is true that in the instant case, the complainant, Silvino Belarmino, did not die and that there was a great difficulty in determining the injury, if any, sustained by him, because of the impossibility of examining his stomach and other internal organs. In the Pineda case, this Court’ declared, with reason and justified by experience, that the profession of pharmacy demands great care and skill, and that druggists must exercise and use the highest degree of care known to practical men; and that the care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. But it may be stated that the instant case is different from the Pineda case, in which the accused was a licensed pharmacist and druggist; whereas in the instant case, the defendant and appellant Nena Tanalega Raymundo, was only a pharmacy clerk. But it must be borne in mind that, at the time of the commission of the alleged offense, defendant and appellant was already a pharmacy graduate, and that she had worked as a pharmacy clerk in several drug stores in the City of Manila, although she had not yet taken and passed the examinations prescribed by the Board of Pharmaceutical Examiners. But the offenses penalized under the provisions of section 751 of the Revised Administrative Code, in connection with the provisions of section 2676 thereof, may be committed not only by licensed druggists and pharmacists, but also by any other person preparing any drug, chemical, medicine or poison, under any fraudulent name. After a careful consideration of the allegations made in the information filed in this case, and the facts fully established by the evidence adduced during the trial, the Court ’ has reached the inevitable conclusion that defendant and appellant Nena Tanalega Raymundo, is guilty of a violation of the provisions contained in said section 751 of the Re-vised Administrative Code, in connection with the provisions of section 2676 thereof. As already stated, the prescription (Exhibits C and 2) called for: “Spartein sulphate ………………………………………………………………… 1.00 “Phenobarbital ………………………………………………………………… 0.50 “Carbromal ………………………………………………………………… 5.00” whereas, the medicine compounded by defendant and appellant contained strychnine sulphate, instead of spartein sulphate (Exhibit D). It is an elementary rule of criminal jurisprudence that the defendant in a criminal case may be found guilty of any offense necessarily included in the allegations made in the information, and fully established by the evidence. (Rule 116, section 4, Rules of Court; United States vs. Paua, 6 Phil., 740; United States vs. Jeffrey, 15 Phil, 391; United States vs. Lim San, 17 Phil., 273; United States vs. De Guzman, 19 Phil., 350; United States vs. Salvador, 22 Phil., 113; United States vs. Guzman, 25 Phil., 22; United States vs. Panlilio, 28 Phil., 608.) Defendant and appellant cannot complain that she has been found guilty of a criminal offense, without due process of law. She had ample opportunity to defend herself against the charges filed against her. With reference to the requirements of “due process of law” as applied to criminal procedure, in the language of the Supreme Court of the United States, generally speaking, it may be said that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded within the authority of a constitutional law, then he has had due process of law. (Rogers vs. Peck, 199 U. S., 425, 435; Twining vs. New Jersey, 211 U. S., 78.) The phrase “due process of law”, used in the Constitution of the Commonwealth of the Philippines, should receive a comprehensive interpretation, and no procedure should be treated as unconstitutional which makes due provision for the trial of the accused before a court of competent jurisdiction, for bringing the accused into court and notifying him of the cause he is required to meet, for giving him an opportunity to be heard, for the deliberation and judgment of the court, and for an appeal from such judgment to the highest tribunal of the land. (United States vs. Grant and Kennedy, 18 Phil., 122.) The offense enumerated under said section 751 of the Revised Administrative Code, and penalized under section 2676 thereof, prescribed after four (4) years. (Act No. 3326, section 2, as amended by Act No. 3585.) Consequently, the defense of prescription cannot be successfully raised by the defense in this case. The claim of defendant and appellant that, in prosecuting this case, the complainant had been impelled by improper motives, in the sense that he intended to make money out of it, as the Escudero Drug Store was known to be the property of a wealthy family, in the opinion of the Court, is completely unfounded, considering the well-established facts that herein complainant has always been a friend of Dr. Leon Castillo, manager of said drug store, and former classmate of the complainant; and there is no evidence that herein complainant had not been on friendly terms with Arsenio Escudero, owner of said drug store. In view of the foregoing conclusions, it is deemed unnecessary to consider the other questions raised by defendant and appellant in her motion for reconsideration. The Court declares that the preparation of one medicine for another, by a pharmacy clerk, under a false name, whether it be through negligence, accident or mistake, is punishable under the law. Defendant and appellant Nena Tanalega Raymundo is found guilty of having prepared one medicine for another, under a false name, in violation of the provisions of section 751 of the Revised Administrative Code; and, in accordance with the provisions of section 2676 thereof, she is hereby sentenced to pay a fine of two hundred pesos (P200), with subsidiary imprisonment in case of insolvency, and to pay the costs of this instance; and with this modification the judgment of the Court of Appeals for Southern Luzon is upheld, and the petition for reconsideration is consequently denied. So ordered. Moran, C. J., Jaranilla, Feria, Pablo, Bengzon, and Briones, JJ., concur.