Republic of the Philippines


G.R. No. L-43430             January 7, 1936

FILEMON D. MALABANAN, defendant-appellant.

Eusebio M. Lopez for appellant.
Office of the Solicitor-General Hilado for appellee.


Appellant was convicted in the Court of First Instance of Batangas of a violation of article 208 of the Revised Penal Code.

In July, 1933, appellant was municipal president of the of San Juan, Province of Batangas, and was engaged in raising funds for the construction of a ward in the provincial hospital for tubercular patients. Notwithstanding all his efforts to secure contributions, he was unable to approximate the quota which had been set for his town by the provincial authorities, and he therefore on July 22, and July 29, organized and held cock-fights, neither day being authorized by law for such purposes.

Article 208. of which appellant was ground guilty, reads as follows:

ART. 208. Prosecution of offenses; negligence and tolerance. — The penalty of prision correccional in its minimum period and suspension shall be imposed upon any public officer, or officer of the law, who, in the dereliction of the duties of his office, shall maliciously refrain from instituting prosecution for the punishment of violators of the law, or shall tolerate the commission of offenses.

It is not clear whether the government is claiming the right to punish appellant because he did not institute prosecution against himself for organizing a cock-fight on a day other than those permitted by law or, under the last clause, that it was his duty to have prosecutions instituted against all who attended the cock-fights and bet money thereon.

It is also contended in argument that the word "maliciously" in the Act means no more than mere knowledge or voluntary violation of the law and that it only applies to the first clause and does not qualify the toleration therein denounced. It is true that the word "maliciously" has been given by the courts different meanings according to the context of the legislation in which the word is used. The Spanish text of the Act being the controlling one, the definition of malicia found in 21 Enciclopedia Juridica Española, page 542, is instructive.

MALICIA. El estado de espiritu que se complace en el deseo y practica de una accion perversa, a sabiendas de su maldad y no obstante esta.

La malicia es la caracteristica subjetiva o psicologica del delito, segun las ideas tradicionales de la escuela penal española. Asi, desde los comienzos de la codificacion, el Codigo Penal de 1822 defenia el delito de esta suerte: "Comete delito el que, libre y voluntaiamente, y con malicia, hace u omite lo que la ley prohibe o manda bajo alguna pena" (art. 1.º). Y aun despues de eliminada la palabra en la redaccion del Codigo de 1870, todavia la repite el Codigo Penal de la Marina de guerra, como si fuera de hecho insubstituible: "Son delitos y faltas las acciones u omissiones penadas por la ley y ejecutadas con malicia" (art. 1.º). Pero, ¿llamariamos realmente "malicia" al estado de animo del delincuente politico generoso, del delincuente pasional honrado? La formula, no obstante sus apariencias de exactitud, nos parece incapaz de servir de comun denominador a todos los delitos.

En otra de sus acepciones que en Derecho tiene menos valor, la palabra "malicia" equivale a la penetracion, sutilez y sagacidad propia de ciertos espiritus, mas o menos habitualmente.

These definitions indicate what the ordinary use of the word connotes, that the action complained of must be the result of a deliberate evil intent and does not cover a mere voluntary act.

Looking at it from a practical standpoint, it is clear that giving this section the most liberal interpretation possible would result in impossible conditions in these Islands. If every public functionary who fails to institute criminal proceedings for every misdemeanor which he has reason to believe has been committed, is liable to be sent to jail for a year and a half as a felon, an intolerable situation would occur. Every municipal president in the Islands would be subject to conviction by the machinations of his political enemies, under a statute as rigorous as any devised by Draco.

Appellant admits in his testimony acts which are clearly denounced by article 199, paragraph 1, of the Revised Penal Code.

ART. 199. Illegal cockfighting. — The penalty of arresto menor or a fine not exceeding 200 pesos, or both, in the discretion of the court, shall be imposed upon:

1. Any person who directly or indirectly participates in cockfights, by betting money or other valuable things, or who organizes cockfights at which bets are made, on a day other than those permitted by law.

For his infraction of the law can he be punished under this section, and there is no necessity of straining a highly criminal statute to adequately punish his acts.

We therefore find appellant not guilty of a violation of article 208 but guilty of a violation of article 199, paragraph 1, of the Revised Penal Code, and sentence him to pay a fine of P10, with subsidiary confinement in case of insolvency.

The judgment appealed from, as thus modified, is affirmed. Costs against appellant. So ordered.

Malcolm, Villa-Real, Abad Santos, Vickers, Butte, Goddard, and Diaz, JJ., concur.

Separate Opinions

AVANCEÑA, C.J., dissenting:

It is alleged in the information, among other things, that the appellant, being municipal president of San Juan, Batangas, tolerated cock-fights at which money was betted on days not permitted by law. The appellant's admission that he organized and conducted these cockfights establishes this allegation of the information in the sense that he tolerated the commission of the violation of the law wherein others, besides him, intervened. In my opinion, this is sufficient to warrant the affirmance of the sentence. In view of the circumstances of the case, however, the absolute pardon of the appellant should be recommended to the Chief Executive.

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