EN BANC

[G.R. No. 38046. September 24, 1932.]

ESTAQUIO LAGRIMAS, petitioner, vs. THE DIRECTOR OF PRISONS, respondent.
in his own behalf.
The petitioner

Attorney-General Jaranilla for respondent.

SYLLABUS
1. CRIMINAL LAW; CRIMES COMMITTED UNDER FORMER PENAL CODE; REVISED PENAL
CODE. — The accused cannot be set at liberty as he prays upon the ground that the Revised Penal Code
provides no penalty for the crime for which he has been sentenced, inasmuch as this same code provides
that crimes committed prior to its enforcement shall be punished in accordance with the law in effect at
the time of their commission.
2. ID.; ASSAULT UPON PERSONS IN AUTHORITY OR THEIR AGENTS; PROVISIONS
COMPARED.—The decision compares articles 250 and 251 of the old Penal Code with articles 148 and
149 of the Revised Penal Code with reference to the crime of assault upon persons in authority or their
agents, pointing out the differences, particularly the fact that article 149 of the Revised Penal Code does
not penalize the act of laying hands upon agents of persons in authority, or public officials, as article 251
of the old Penal Code does.

DECISION

VILLAMOR, J : p

The petitioner, who is detained in Bilibid, prays that an order be issued directing that he be set at
liberty, invoking article 149 of the Revised Penal Code, which prescribes a lesser penalty for the crime
penalized by article 251 of the old Penal Code under which he was sentenced by the Court of First
Instance of Samar to two years, eleven months, and eleven days of prision correccional and a fine of 375
pesetas.

The respondent opposes the petition maintaining that article 148 and not 149 of the Revised
Penal Code is applicable to the present case.
The record shows that the petitioner slapped and used offensive language to Mamerta Alcazar, a
teacher in the public school of the town of Laoang, Samar, while she was performing her official duties.
The accused was found guilty of the crime of assault upon a public official as charged, and sentenced
according to article 251 of the old Penal Code, to the penalty aforementioned.
 It may be noted that in the brief filed against the petitioner in G.R. No. 33529, [1] the Attorney-
General contended that the crime committed was penalized by article 250, No. 3, of the old Penal Code,
with a penalty ranging from six years and one day of prision correccional to eight years of prision mayor,
and the court said that this contention was technically correct. But in view of the fact that the accused
was actuated by passion and obfuscation, the court affirmed the judgment appealed from.
According to the old Penal Code, article 249, the offense of assault is committed by: "1. . . .; 2. Any
person who shall attack, employ force against, or seriously resist or intimidate, any person in authority,
or the agents of such person, while engaged in the performance of official duties, or by person of such
performance."
The penalties for such assaults are given in articles 250 and 251 of the Code.
Similarly, the Revised Penal Code penalizes two kinds of assault, direct and indirect, in articles 148
and 149. For a better understanding of the matter, we deem it wise to place the old and the new
provision side by side:
Old Penal Code
"ART. 250. The penalty for assaults falling within the next preceding article shall
be prision correccional in its medium degree to prision mayor in its minimum degree and a
fine of not less than six hundred and twenty-five and not more than six thousand two
hundred and fifty pesetas, when the offense is committed under any of the following
circumstances:
"1. When the person committing the assault displays a weapon.
"2. When the person committing the assault is a government employee.
"3. When the offenders lay hands upon any person in authority.
"4. When, in consequence of coercion, the person in authority has acceded to the
demands of the offenders.
"If no one of these circumstances be present, the penalty shall be prision correccional
in its minimum and medium degrees and a fine of not less than three hundred and seventy-
five and not more than three thousand seven hundred and fifty pasetas.
ART. 251. Offenders who shall have made use of force or intimidation, as referred
to in paragraph one of article two hundred and forty-nine, for the purposes therein
mentioned, shall suffer the maximum degree of the penalty prescribed by the last paragraph
of the next preceding article, if they shall have laid hands upon any person or persons who
shall have come to the aid of the authorities or upon their agents, or upon any public
officer."
Revised Penal Code

"ART. 148. Direct assaults. — Any person or persons who, without a public
uprising, shall employ force or intimidation for the attainment of any of the purposes
enumerated in defining the crimes of rebellion and sedition, or shall attack, employ force or
seriously intimidate or resist any person in authority or any of his agents, while engaged in
 the performance of official duties, or on occasion of such performance, shall suffer the
penalty of prision correccional in its medium and maximum periods and a fine not exceeding
1,000 pesos, when the assault is committed with a weapon or when the offender is a public
officer or employee, or when the offender lays hands upon a person in authority. If none of
these circumstances be present the penalty of prision correccional in its minimum period and
a fine not exceeding 500 pesos shall be imposed.
"ART. 149. Indirect assaults. — The penalty of prision correccional in its minimum
and medium periods and a fine not exceeding 500 pesos shall be imposed upon any person
who shall make use of force or intimidation upon any person coming to the aid of the
authorities or their agents on occasion of the commission of any of the crimes defined in the
next preceding article."
A comparative reading of the provisions above quoted will show that articles 250 and 148 refer to
assaults upon a person in authority or his agents, and both articles are concerned with two cases. the
circumstances determining the first case are the same, with the exception of No. 4, article 250, which is
not reproduced in article 148. These articles differ with respect to the penalties in the first and the
second case. The first case contemplated in article 250 is penalized with prision correccional in the
medium degree to prision mayor in the minimum degree in addition to the fine prescribed by the law;
whereas the first case of article 148 is only penalized with prision correccional in the medium and
maximum degrees, and a fine. These two articles also differ in regard to the second case, for, while article
250 imposes the penalty of prision correccional in the minimum and medium degrees, and a fine, article
148 only provides prision correccional in the minimum degree and a fine.
As for articles 251 and 149 it may be stated that they refer to those guilty of laying hands upon
any person coming to the aid of the authorities, with the difference that article 251 also penalizes those
who lay hands upon agents of the authorities or upon public officials, and article 149 does not. These
two articles also differ with reference to the penalty, for while article 251 imposes the maximum of the
penalty ranging from the minimum to the medium degree of prision correccional, and a fine, article 149
only imposes prision correccional in the minimum and medium degrees, and a fine.
As stated above, counsel for the respondent contends that the law applicable to the case is article
148 and not 149 of the Revised Penal Code, averring in his answer that the petitioner was charged with
the crime of assault upon a person in authority, and sentenced to two years, eleven months and eleven
days, and a fine of 375 pesetas, which is the minimum of the maximum degree of the penalty prescribed
in No. 2 of article 250 of the old Penal Code.
It is noted, however, that the sentence of the trial court, affirmed by this court, expressly held that
the crime charged is that penalized by article 251 of the Penal Code, to wit, laying hands upon persons
coming to the aid of the authorities or their agents or upon public officials, an offense punished with the
penalty fixed by No. 2 of article 250, in the maximum degree, that is two years, eleven months, and
eleven days of prision correccional and a fine of 375 pesetas, equivalent to P75. And as heretofore stated,
article 251 is concordant to article 149, with the difference that the latter contains no penal sanction for
the offense of laying hands upon agents of the authorities or upon public officials.
This conclusion relieves us of the necessity of discussing in this case whether a public-school
teacher, like Alcazar whom the accused assaulted, is or is not an agent of the authorities or a public
official; and the remaining question is whether the petitioner, who was sentenced by virtue of a provision
of the former Penal Code, may be set at liberty on the ground that the Revised Penal Code provides no
penalty for the crime committed under the former Code.
Article 366 of the Revised Penal Code provides: "Without prejudice to the provisions contained in
article 22 of this Code, felonies and misdemeanors, committed prior to the date of effectiveness of this
Code shall be punished in accordance with the Code or Acts in force at the time of their commission." We
understand that the intention of the Legislature in embodying this provision in the Revised Penal Code
was to insure that the elimination from this Code of certain crimes penalized by former acts before the
enforcement of this Code should not have the effect of pardoning guilty persons who were serving their
sentences for the commission of such crimes. By virtue of this provision, we are clearly of the opinion
that the petition must serve out the penalty imposed upon him, unless he be pardoned by the Executive
Power.
Petition denied, with costs de officio. So ordered.

Street, Malcolm, Ostrand, Abad Santos, Hull, Vickers, Imperial and Butte, JJ., concur.
Separate Opinions
AVANCEÑA, C.J., dissenting:
I dissent, and maintain that the remedy should be granted.
The petitioner was sentenced for a crime penalized by the old Penal Code, but not by the Revised
Penal Code. In praying that he be ordered set at liberty, the petition invokes article 22 of the Revised
Penal Code, which provides:
"ART. 22. Retroactive effect of penal laws. — Penal laws shall have a retroactive
effect in so far as they favor the person guilty of a felony, who is not a habitual criminal, as
this term is defined in rule 5 of the article 62 of this Code, although at the time of the
publication of such laws a final sentence has been pronounced and the convict is serving the
same."
The majority denies the petition relying upon article 366 of the Revised Penal Code, which reads
as follows:
"ART. 366. Application of laws enacted prior to this Code. — Without prejudice to
the provisions contained in article 22 of this Code, felonies and misdemeanors, committed
prior to the date of effectiveness of this Code shall be punished in accordance with the Code
or Acts in force at the time of their commission."
The majority hold that the intention of the Legislature, in including this provision in the Revised
Penal Code, was to insure that the elimination from this Code of certain crimes penalized by former laws
should not have the effect of pardoning guilty persons who were serving their sentences for the
commission of such crimes.
I disagree with this doctrine.
 Article 366 of the Revised Penal Code, in providing that offenses committed prior to its
enforcement shall be punished in accordance with the laws in force at the time of the commission
thereof, without prejudice to the provisions contained in article 22 of said code, did nothing more than
reaffirm the retroactivity of its provisions when favorable, as provided in the latter article.
When the Revised Penal Code has reduced the penalty for a crime committed under the old code,
it is because it considers such crime to be less serious than it was formerly considered. In this sense the
new Code is favorable. Furthermore, when it has eliminated entirely the penalty for an act which was
formerly punishable, it is because it no longer considers such act a crime. In this sense it is even more
favorable. When a convict serving sentence under the old Penal Code has extinguished a portion thereof
equal to or greater than that provided in the Revised Penal Code, he is entitled to be set at liberty by
virtue of article 22. In fact, we are setting convicts at liberty under these conditions; because the present
law, considering the crime committed to be less serious than formerly, prescribes a lighter penalty
therefor. In spite of this, the petitioner in the present case, who is serving sentence for an act which is
now considered not only as a less serious offense, but, on the contrary, as an innocent act which is no
longer penalized, is denied his liberty. If article 22 is applicable when the Revised Penal Code is to some
extent favorable to the accused, I see no reason why it should not be applicable when the new code is
decidedly, nay, entirely, favorable to him.
When a later law mitigates the penalty prescribed for a crime by a former law, deeming it unjust,
excessive, and not commensurate with the offense committed, its purpose is to correct an injustice in
legislation. In order not to limit the benefits of this correction to those who have not yet been sentenced
for reasons which perhaps render them less deserving of those benefits (e.g., becoming fugitives from
justice), they are extended to those who have already been sentenced, because they submitted to the
action of the courts, and are still serving their sentences. The purpose of the provision of the law relating
to its retroactivity is to make amends for injustice to the fullest extent possible. If this be so with regard
to a penalty deemed excessive, it should be considered so with greater reason when one is deemed not
to have committed a criminal act at all, and hence not liable to any penalty.
VILLA-REAL, J.:
I concur with the dissenting opinion of Chief Justice Avanceña.
Footnotes
1. People vs. Lagrimas, promulgated April 8, 1931, not reported.