[ G.R. No. L-1375. February 24, 1950 ] G.R. No. L-1375
[ G.R. No. L-1375. February 24, 1950 ]
NG PO, PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES, RESPONDENT. D E C I S I O N
OZAETA, J.:
The decision of the Court of Appeals under review reads in part as follows:
“The accused has appealed from the decision of the Court of First Instance of Manila finding him guilty of violating section 177, in connection with section 46 (a), of the Election Law (Commonwealth Act No. 357), and sentencing him to suffer 1 month imprisonment, deportation of not less than 3 years after serving his imprisonment, and to pay the costs.
“It appears that at about 11:30 in the morning of March 9, 1946, a day set for registration of voters in the City of Manila, the accused, who was a Chinese cook of the Long Life Restaurant at 2021, Rizal Avenue, was seen by Patrolmen Jimenez, Sabate and Basco drinking beer inside said restaurant. Upon being challenged by the peace officers as to why he was drinking beer on a day when such drinking was forbidden by law, the accused answered that he had not purchased the beer.
“The accused, testifying as the only witness in his defense, stated that he was in the habit of taking beer every day in small quantities and that because of the heat in the kitchen where he worked, and as he felt a pain the stomach, he decided to drink beer on that particular occasion. He also denied knowing that on the 9th of March it was forbidden to drink liquor.
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“The fact that the appellant is a foreigner and not able to vote does not furnish an excuse for his action. The penalty of deportation specifically attached to these offenses by the Election Law is evidence that foreigners are enjoined to strict observance of its prohibitions. However, we agree with the Solicitor General that under the circumstances of the case the violation of the Election Law by the accused was purely technical, since it evidenced no intention to interfere with the registration proceedings, and that the penalty prescribed is excessive.
“WHEREFORE, in accordance with Article 5 of the Revised Penal Code, the judgment of the Court below is affirmed with costs, but with the recommendation that executive clemency be extended to the accused appellant. Let a copy of this decision be sent to the Office of the President of the Republic of the Philippines, thru the Honorable, the Secretary of Justice.”
Section 46 (a) of the Election Code (Commonwealth Act No. 357) declares it unlawful to sell, furnish, offer, or take intoxicating liquors on registration days and on the two days immediately preceding the day of the voting and during the voting and canvass; and section 177 of the same code penalizes a malicious violation of any of the provisions of various specified sections, including section 46.
In this connection, we note that section 133 of the Revised Election Code (Republic Act No. 180) which supersedes and repeals Commonwealth Act No. 357, omits the word “malicious” in penalizing violation of any of the provisions of the sections therein specified.
The only question to determine is whether the accused was guilty of a malicious violation of section 46 (a).
In view of the amendment of the law omitting the word “malicious,” the question has lost importance in the enforcement of the election law as amended.
Considering that the accused was a Chinese cook in a restaurant and that he drank a small quantity of beer on March 9, 1946 (which happened to be a day set for the registration of voters), “because of the heat in the kitchen where he worked” and because “he felt a pain in the stomach,” we are inclined to give him the benefit of the doubt that he intentionally or maliciously violated the provision of the election law in question.
The judgment is reversed, with costs de oficio.
Moran, C.J., Bengzon, Padilla, Tuason, and Torres, JJ., concur. Pablo, J., see concurring opinion. Montemayor, J., concurs to Mr. Justice Pablo. Reyes, J., no part.