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[G.R. No. 5126. September 2, 1909. ]

THE UNITED STATES, Plaintiff-Appellee, v. CATALINO APOSTOL, Defendant-Appellant.

Francisco Ortigas for Appellant.

Solicitor-General Harvey for Appellee.


1. ARSON; EDIFICE USED AS DWELLING. — The words "Edifice used as a dwelling" in paragraph 1 of article 553 of the Penal Code, signify and edifice intended for human habitation, in an uninhabited place, at a time when it is unoccupied.



The judgment entered in this case by the Court of First Instance of Nueva Ecija finds that on the 16th of December, 1907, five individuals, among them being the accused herein, went to the house where Pedro Tabilisima, Celestino Vergara, and Tranquilino Manipul were living, and there inquired after some carabaos that had disappeared, and because these above-mentioned inmates answered that they knew nothing about the matter, ordered them to leave the house, but as the three men named above refused to do so, the accused, Catalino Apostol, set fire to the hut and the same was burnt down.

In the opinion of the trial court the responsibility of the accused has been fully established by the testimony of the injured parties. And inasmuch as,, according to the same, the act comes within the provisions of article 549 of the Penal Code, Catalino Apostol was sentenced to sixteen years and one day of cadena temporal, to the accessories of the law, to indemnity the value of the burnt hut in the sum of P1, and to pay the costs.

An appeal having been taken to this court, the defense claimed, on behalf of the offender: (1) The absence of proof of criminal intent; (2) that in view of the fact that the burnt hut was situated in an uninhabited place, it is not proper to apply article 549, but article 554 of the Penal Code.

Criminal intent as well as the will to commit a crime are always presumed to exist on the part of the person who executes an act which the law punishes, unless the contrary shall appear. (Art. 1, Penal Code.)

As to the circumstances connected with the burning of the hut, Pedro Tabilisima testified that he and his friends were in the same; that the accused and his companions arrived at 8 p.m. and questioned them about carabaos that they said had been stolen from them; that after they replied that they knew nothing, the former set fire to the house and they jumped out of it; that the witness and two companions lived in the house; that it was situated in an uninhabited place, surrounded by fields; that the nearest houses were far away, and cries could not be heard from one house to another; and that the burnt house was not worth more than P1, because it was a small one, the witness himself having constructed it.

Celestino Vergara says that several individuals arrived at 8 o’clock at night, asked them for carabaos that they claimed to have lost, wounded Tranquilino Manipul, who was asleep, and Pedro Tabilisima, forced them to leave the house, and as they did not want to do so for fear of being assaulted the accused set fire to the same; they tried to put out the fire as long as they could, but when no longer able jumped out of the house. The house was in an uninhabited locality, in the fields, the nearest house being a small store to which the cry of a person might carry, and the neighboring houses could be seen.

Tranquilino Manipul testified in almost the same terms as this last witness. The argument which the defense advances, based on article 554, which in connection with 553 punishes the setting fire to a building intended for habitation, in an uninhabited place, does not apply, because the article in question refers to an edifice intended for human habitation in an uninhabited place at a time when the same is unoccupied. It is article 549, which punishes with the very severe penalties of cadena temporal to cadena perpetua "those who shall set fire to any edifice, farmhouse, hut, shed, or vessel in port, with knowledge that one or more persons were within the same," that must be applied.

The law must be applied as laid down in the abovequoted excerpt.

But the court, in view of the nature of the crime and considering the circumstances attending the same, recognizes the extreme severity of the penalty; therefore we apply the remedy afforded it by article 2, paragraph 2, of the Penal Code, when a strict application of the provisions of the code would result in an excessive penalty, taking into consideration the degree of malice and the injury caused by the crime.

For the reasons above set forth the judgment appealed from is hereby affirmed with costs against the Appellant. Ten days from date let a confirming judgment be entered, and ten days thereafter let the case be remanded to the lower court for action.

Without prejudice to the immediate execution of the judgment, let the clerk of this court, as provided in the said article 2 of the Penal Code, respectfully address a communication to the Honorable, the Governor-General of these Islands, giving the result of this decision and the sentence, requesting him, should he so desire, to make use of the prerogative with which he is invested in order to reduce or mitigate the penalty imposed. So ordered.

Torres, Johnson, Carson and Moreland, JJ., concur.

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