1. PRISONS; "WARDEN" OR "ALCAIDE." — The word "warden" or alcaide," as used in article 380 of the Penal Code, is applicable to any officer who, as such, has the charge or custody of prisoners.
The defendant is charged with the crime of having violated his duty in relation of prisoners, while he was acting as warden or alcaide of the Tondo police station of the city of Manila. The complaint alleges:jgc:chanrobles.com.ph
"That on or about September 18, 1913, in the city of Manila, Philippine Islands, the said Eulalio Morelos, being a duly appointed and qualified policeman, and as such acting as warden, jailer, and person charged with the care and vigilance of the prisoners that were then in the prisoners’ cells of the police station of Tondo of said city, and among which prisoners was one Tomasa Clemente, did willfully, and criminally and taking advantage of the fact that the said Tomasa Clemente was asleep in one of the cells mentioned, approach her, place himself upon her, insert his sexual organ and male member in the genital organs of said offended woman, and have carnal intercourse with her, demanding her love, making unchaste proposals to her, and proposing to her illicit sexual relations and connections; in violation of the law."cralaw virtua1aw library
Upon said complaint the defendant was duly arrested, arraigned, pleaded not guilty, was tried, found to be guilty, and sentenced to be imprisoned for a period of three years six months and twenty-one days of prision correccional, and to pay the costs, in accordance with the provisions of article 380 of the Penal Code, and for a period of eleven years and one day of inhabilitacion temporal especial.
From that sentence the defendant appeals to this court. In this court the appellant presents two questions, one of fact and one of law. The question of fact presented by the appellant relates to the sufficiency of the evidence to support the complaint. The question of law relates to the application of article 380 to the facts in the present case.
That Tomasa Clemente, the offended person, was prisoner in the Tondo police station on the night of the 18th of September, 1913, and for two or three days theretofore, is a fact not denied; that the accused was in charge of the prisoners in said police station on the night of said day, is a fact not disputed; that the defendant entered the cell of Tomasa Clemente on the night in question and had illicit relations with her, is a fact fully sustained by the proof. Article 380 provides:jgc:chanrobles.com.ph
"Any warden (alcaide) who shall solicit any woman in his custody, shall suffer the penalty of prision correccional, in its medium and maximum degrees.
"If the woman solicited be the wife, daughter, or sister, or a relative within the same degree of affinity, of any person in the custody of such warden (alcaide), the penalty shall be prision correccional in its minimum and medium degrees.
"In every case a penalty ranging from temporal special disqualification in its maximum degree to perpetual special disqualification, shall also be imposed."cralaw virtua1aw library
It will be noted under said law that the same applies to any warden (alcaide) "who shall solicit any woman in his custody," and that he shall suffer the penalty prescribed by the law. The appellant argues that he was not the warden or alcaide and, therefore, said article does not apply to him. The word "warden" or "alcaide," as used in said article, is used in a most general sense. From an examination of the word "warden" or "alcaide," both in the English and Spanish dictionaries, we find that it means a person who has charge of prisoners. In our opinion the word is used in that general signification in said article 380, and that the same is therefore applicable to the defendant.
The appellant further argues that the proof fails to show that he had solicited a woman in his custody. It was proven, however, that his illicit relations had been consummated. It would be a strange interpretation to place upon said law, that a failure in the proof to show a "solicitation" was sufficient to relieve the defendant from responsibility when the act solicited had been consummated.
In our opinion said article 380 is applicable to the facts in the present case.
For all of the foregoing reasons, the sentence of the lower court should be and is hereby affirmed, with costs.
, Torres and Araullo, JJ.
, dissenting:chanrob1es virtual 1aw library
This court, after stating that the appellant presents two questions, one of fact, and one of law, says: "That Tomasa Clemente, the offended person, was a prisoner in the Tondo police station on the night of the 18th of September, 1913, and for two or three days thereafter, is a fact not denied; that the accused was in charge of the prisoners in said police station on the night of said day, is a fact not disputed; that the defendant entered the cell of Tomasa Clemente on the night in question and had illicit relations with her, is a fact fully sustained by the proof."cralaw virtua1aw library
The trial court uses this language: "The court does not accept the story of the woman (Tomasa Clemente) that the defendant had connection with her while she was asleep. The crime of rape does not, therefore, exist, and it would seem that the case would fall under the provisions of article 380 of the Penal Code. Before the warden could have access to the woman he must have solicited her while she was under his custody."cralaw virtua1aw library
The appellant goes to prison for three years six months and twenty-one days upon the following testimony of the complaining party:chanrob1es virtual 1aw library
Tomasa Clemente testified under oath as follows:jgc:chanrobles.com.ph
"I am not married but I live with Tan Yu Lam. I have been living with Tan Yu Lam about one year. I was arrested with him on the 17th of September, 1913, for a violation of the Opium Law. Tan Yu Lam was convicted and I was acquitted. We were confined in separate cells in the Tondo police station.
"Q. How many days did you stay under arrest in the Tondo station? — A. I do not remember how many days I had been detained at the police station, but during the first two nights nothing happened to me, but on the third night something happened.
"Q. State to the court what happened to you the third night after you were under arrest in the Tondo police station. — A. That night that policeman, the accused, entered my cell and had carnal intercourse with me without my knowledge.
"Q. How was that? How did that happen?. — A. I was sleeping at the time, and I was only awakened when he had already finished his act, and he happened to press my knee with some part of his body.
"Q. Were you alone in your cell, or was there somebody with you? — A. I was alone.
"Q. Now, you say that the defendant had sexual intercourse with you. How do you know that, if you were asleep while you think he had it? — A. Yes, sir, I found it out after he had left, and besides that I felt it myself, because I am a married woman, an(l a married woman is always able to tell what has happened to her body.
"Q. When you were talking with your husband from cell to cell, did you tell him something of what had happened.? — A. No, sir, because I was ashamed. Why should I tell him about it, when he was already suspecting that this man (the accused) was my querido?
"Q. You were ashamed or were afraid of him, is that it? — A. I was ashamed and afraid at the same time.
"Q. You didn’t see him (the accused) until he was through the act? — A. No. sir, I did not, because then is when I woke up.
The prosecution does not claim that any person saw the accused have illicit relations with Tomasa Clemente. Tomasa’s testimony is absolutely every particle of evidence upon this point. The trial court declined to accept "the story of the woman (Tomasa Clemente) that the defendant had connection with her while she was asleep," and this court contents itself by saying that the defendant entered the cell of Tomasa Clemente on the night in question and had illicit relations with her is a fact fully sustained by the proof." Neither court says anything further about the testimony The Attorney-General says that the defendant’s main contention "on this point is that the testimony of Tomasa Clemente is incredible and absurd. We, however, fail to find anything inherently incredible and absurd in the testimony of the latter that Morelos had sexual intercourse with her. In this connection it is important to bear in mind that the law presumes that every witness tells the truth until the contrary is fully demonstrated." The trial court rejected the only essential testimony upon the main point. This court and the Attorney-General accepted as true the testimony of Tomasa. Why this can be done, I am unable to understand, as her testimony is contrary to the very nature of things. It is not only inherently improbable, but it is, on its face, absolutely absurd. Yet the defendant is convicted upon this testimony. This, in so far as I have been able to ascertain, is the first case on record of its kind.