Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 45186           September 30, 1936

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
JOSEFINA BANDIAN, defendant-appellant.

Jose Rivera Yap for appellant.

Office of the Solicitor-General Hilado for appellee.

DIAZ, J.:

Charged with the crime of infanticide, convicted thereof and sentenced to reclusion
perpetua and the corresponding accessory penalties, with the costs of the suit, Josefina
Bandian appealed from said sentence alleging that the trial court erred:

I. In taking into consideration, to convict her, her alleged admission to Dr. Nepomuceno
that she had thrown away her newborn babe, and

II. In holding her guilty of infanticide, beyond reasonable doubt, and in sentencing her
to reclusion perpetua, with costs.

The facts of record ma be summarized as follows:

At about 7 o'clock in the morning of January 31, 1936, Valentin Aguilar, the appellant's
neighbor, saw the appellant go to a thicket about four or five brazas from her house,
apparently to respond to a call of nature because it was there that the people of the place
used to go for that purpose. A few minutes later, he again saw her emerge from the
thicket with her clothes stained with blood both in the front and back, staggering and
visibly showing signs of not being able to support herself. He ran to her aid and, having
noted that she was very weak and dizzy, he supported and helped her go up to her
house and placed her in her own bed. Upon being asked before Aguilar brought her to
her house, what happened to her, the appellant merely answered that she was very
dizzy. Not wishing to be alone with the appellant in such circumstances, Valentin Aguilar
called Adriano Comcom, who lived nearby, to help them, and later requested him to take
bamboo leaves to stop the hemorrhage which had come upon the appellant. Comcom
had scarcely gone about five brazas when he saw the body of a newborn babe near a
path adjoining the thicket where the appellant had gone a few moments before. Comcom
informed Aguilar of it and latter told him to bring the body to the appellant's house. Upon
being asked whether the baby which had just been shown to her was hers or not, the
appellant answered in the affirmative.

Upon being notified of the incident at 2 o'clock in the afternoon of said day, Dr. Emilio
Nepomuceno, president of the sanitary division of Talisayan, Oriental Misamis, went to
the appellant's house and found her lying in bed still bleeding. Her bed, the floor of her
house and beneath it, directly under the bed, were full of blood. Basing his opinion upon
said facts, the physician in question declared that the appellant gave birth in her house
and in her own bed; that after giving birth she threw her child into the thicket to kill it for
the purpose of concealing her dishonor from the man, Luis Kirol, with whom she had
theretofore been living maritally, because the child was not his but of another man with
whom she had previously had amorous relations. To give force to his conclusions, he
testified that the appellant had admitted to him that she had killed her child, when he
went to her house at the time and on the date above-stated.

The prosecuting attorney and the lower court giving absolute credit to Dr. Nepomuceno
whose testimony was not corroborated but, on the contrary, was contradicted by the very
witnesses for the prosecution and by the appellant, as will be stated later, they were of
the opinion and the lower court furthermore held, that the appellant was an infanticide.
The Solicitor-General, however, does not agree with both. On the contrary, he maintains
that the appellant may be guilty only of abandoning a minor under subsection 2 of article
276 of the Revised Penal Code, the abandonment having resulted in the death of the
minor allegedly abandoned.

By the way, it should be stated that there is no evidence showing how the child in
question died. Dr. Nepomuceno himself affirmed that the wounds found in the body of the
child were not caused by the hand of man but by bites animals, the pigs that usually
roamed through the thicket where it was found.

Infanticide and abandonment of a minor, to be punishable, must be committed wilfully or

consciously, or at least it must be result of a voluntary, conscious and free act or
omission. Even in cases where said crimes are committed through mere imprudence, the
person who commits them, under said circumstances, must be in the full enjoyment of his
mental faculties, or must be conscious of his acts, in order that he may be held liable.

The evidence certainly does not show that the appellant, in causing her child's death in
one way or another, or in abandoning it in the thicket, did so wilfully, consciously or
imprudently. She had no cause to kill or abandon it, to expose it to death, because her
affair with a former lover, which was not unknown to her second lover, Luis Kirol, took
place three years before the incident; her married life with Kirol — she considers him her
husband as he considers her his wife — began a year ago; as he so testified at the trial,
he knew that the appellant was pregnant and he believed from the beginning, affirming
such belief when he testified at the trial, that the child carried by the appellant in her
womb was his, and he testified that he and she had been eagerly waiting for the birth of
the child. The appellant, therefore, had no cause to be ashamed of her pregnancy to
Kirol.

If to the foregoing facts is added the testimony of the witnesses Valentin Aguilar and
Adriano Comcom that the child was taken from the thicket and carried already dead to
the appellant's house after the appellant had left the place, staggering, without strength
to remain on her feet and very dizzy, to the extent of having to be as in fact she was
helped to go up to her house and to lie in bed, it will clearly appear how far from the truth
were Dr. Nepomuceno's affirmation and conclusions. Also add to all these the fact that
the appellant denied having made any admission to said physician and that from the time
she became pregnant she continuously had fever. This illness and her extreme debility
undoubtedly caused by her long illness as well as the hemorrhage which she had upon
giving birth, coupled with the circumstances that she is a primipara, being then only 23
years of age, and therefore inexperienced as to childbirth and as to the inconvenience or
difficulties usually attending such event; and the fact that she, like her lover Luis Kirol —
a mere laborer earning only twenty-five centavos a day — is uneducated and could
supplant with what she had read or learned from books what experience itself could
teach her, undoubtedly were the reasons why she was not aware of her childbirth, or if
she was, it did not occur to her or she was unable, due to her debility or dizziness, which
causes may be considered lawful or insuperable to constitute the seventh exempting
circumstance (art. 12, Revised Penal Code), to take her child from the thicket where she
had given it birth, so as not to leave it abandoned and exposed to the danger of losing its
life.
The act performed by the appellant in the morning in question, by going into the thicket,
according to her, to respond to call of nature, notwithstanding the fact that she had fever
for a long time, was perfectly lawful. If by doing so she caused a wrong as that of giving
birth to her child in that same place and later abandoning it, not because of imprudence
or any other reason than that she was overcome by strong dizziness and extreme
debility, she should not be blamed therefor because it all happened by mere accident,
from liability any person who so acts and behaves under such circumstances (art. 12,
subsection 4, Revised Penal Code).

In conclusion, taking into account the foregoing facts and considerations, and granting
that the appellant was aware of her involuntary childbirth in the thicket and that she later
failed to take her child therefrom, having been so prevented by reason of causes entirely
independent of her will, it should be held that the alleged errors attributed to the lower
court by the appellant are true; and it appearing that under such circumstances said
appellant has the fourth and seventh exempting circumstances in her favor, is hereby
acquitted of the crime of which she had bee accused and convicted, with costs  de oficio,
and she is actually confined in jail in connection with this case, it is ordered that she be
released immediately. So ordered.

Avanceña, C. J., and Abad Santos, J., concur.

Separate Opinions

VILLA-REAL, J., concurring:

I concur in the acquittal of the accused Josefina Bandian not on the ground that she is
exempt from criminal liability but because she has committed no criminal act or omission.

The evidence conclusively shows that on the day in question the accused Josefina
Bandian had spent a year of marital life with her lover Luis Kirol by whom she was
begotten with a child for the first time. Her said lover knew that she was pregnant and
both were waiting for the arrival of the happy day when the fruit of their love should be
born. Since she became pregnant she continuously had fever, was weak and dizzy. On
January 31, at about 7 o'clock in the morning, she went down from her house and
entered a thicket about four or five brazas away, where the residents of said place
responded to the call of nature. After some minutes the accused emerged from the
thicket staggering and apparently unable to support herself. Her neighbor Valentin
Aguilar, who saw her enter the thicket and emerged therefrom, ran to help her, supported
her and aided her in going up to her house and to bed. Asked by Aguilar what happened
to her, she merely answered that she was very dizzy. Thinking that he alone was unable
to attend to her, Valentin Aguilar called Adriano Comcom, who lived nearby, and
requested him to take bamboo leaves to stop the appellant's hemorrhage. Adriano had
scarcely gone about five brazas, when he saw the body of a newborn child near the path
adjoining the thicket where the accused had been a few moments before. Upon being
informed of the discovery, Valentin Aguilar told Adriano Comcom to bring the child into
the appellant's house. Upon being asked whether or not the child shown to her was hers,
the appellant answered in the affirmative. After an autopsy had been made of the body, it
was found that the child was born alive.

Unconscious, precipitate or sudden deliveries are well known in legal medicine among
young primiparæ who, by reason of their ignorance of the symptoms of parturition and of
the process of expulsion of fetus, are not aware that they are giving birth when they are
responding to an urgent call of nature (Dr. A. Lacassagne, Precis de Medicine Legale,
pages, 799-781; Annales de Medicine Legale, December 1926, page 530;
Vibert, Manual de Medicina Legal y Toxicologia, vol. I, pages 512-514). There is no doubt
that the accused, in her feverish, weak and dizzy condition when she went into the thicket
to defecate and being a primipara with no experience in childbirth, was not aware that
upon defecating she was also expelling the child she was carrying in her womb. Believing
that she did nothing more to respond to an urgent call of nature which brought her there,
she returned home staggering for lack of strength to support herself and for being dizzy,
without suspecting that she was leaving a newborn child behind her, and she only knew
that she had given birth when she was shown the already dead child with wounds on the
body produced by the bites of pigs.

Article 3 of the Revised Penal Code provides that acts and omissions punishable by law
are felonies, which may be committed not only by means of deceit (dolo) but also by
means of fault (culpa); there being deceit when the act is performed with deliberate
intent, and fault when the wrongful act results from imprudence, negligence, lack of
foresight or lack of skill.

As the herein accused was not aware that she had delivered and that the child had been
exposed to the rough weather and to the cruelty of animals, it cannot be held that she
deceitfully committed the crime of infanticide or that of abandonment of a minor, because
according to the above-cited legal provision there is deceit when the act punishable by
law is performed with deliberate intent. Suffering from fever and from dizziness, the
appellant under the circumstances was not aware that she had given birth and,
consequently, she could not have deliberately intended to leave her child, of whose
existence she was ignorant, to perish at the mercy of the elements and of the animals.
Neither can it be held that she faultily committed it because, as already stated, not
knowing for lack of experience in childbirth that in defecating — a perfectly lawful
physiological act, being natural — she might expel the child she carried in her womb, she
cannot be considered imprudent, a psychological defect of a person who fails to use his
reasoning power to foresee the pernicious consequences of his willful act. Having had no
knowledge of the fact of her delivery, the accused could not think that by leaving the child
in the thicket, it would die as a consequence of the rough weather or of the cruelty of
animals. Neither can she be considered negligent because negligence is the omission to
do what the law or morals obliges one to do, which implies knowledge of the thing which
is the subject matter of the compliance with the obligation. Inasmuch as the accused was
not aware of her delivery, her mind cannot contemplate complying with her legal and
moral duty to protect the life of her child. Neither can it be held that the appellant lacked
foresight because, having been absolutely ignorant of her delivery, she could not foresee
that by abandoning her child in a thicket it would die. Neither can it be held that her act
was the result of lack of skill because she did not know that to defecate in a state of
pregnancy might precipitate her delivery, and as defecation is a natural physiological
function, she could not refrain from satisfying it.

We cannot apply to the accused fourth exempting circumstance of article 12 of the

Revised Penal Code which reads: "Any person who, while performing a lawful act with
due care, causes an injury by mere accident without fault or intention of causing it,"
because although the lawful act of satisfying a natural physiological necessity
accidentally provoked the delivery, the delivery itself was not an injury, but the exposure
of the child at the mercy of the elements and of the animals which cased its death. As the
child was born alive, if the accused had been aware of her delivery and she had
deliberately abandoned the child, her accidental delivery would not exempt her from
criminal liability because then the death of said child no longer would have been
accidental. Neither can we consider the seventh exempting circumstance of article 12 of
the Revised Penal Code consisting in the failure to perform an act required by law, when
prevented by some lawful or insuperable cause, because this exempting circumstance
implies knowledge of the precept of the law to be complied with but is prevented by some
lawful or insuperable cause, that is by some motive which has lawfully, morally or
physically prevented one to do what the law commands. In the present case, what the
law requires of the accused-appellant, with respect to the child, is that she care for,
protect and not abandon it. Had she been aware of her delivery and of the existence of
the child, neither her debility nor her dizziness resulting from the fever which consumed
her, being in the full enjoyment of her mental faculties and her illness not being of such
gravity as to prevent her from asking for help, would constitute the lawful or insuperable
impediment required by law. Having been ignorant of her delivery and of the existence of
the child, to her there was subjectively no cause for the law to impose a duty for her to
comply with.

Having had no knowledge of the expulsion of her fetus, the death thereof resulting from
its exposure to the rough weather and to the cruelty of the animals cannot be imputed to
the accused, because she had neither deceitfully nor faultily committed any act or
omission punishable by law with regard to the child.

Imperial and Laurel, JJ., concur.

PEOPLE vs. BANDIAN G.R. No. 45186 September 30, 1936 Infanticide, Article 12 Exempting
Circumstances
NOVEMBER 20, 2017
FACTS:

At About 7 in the morning of January 31, 1936, Valentine Aguilar, the apellant’s neighbor, saw the
appellant go to the thicket about four or five brazas from her house, apparently to respond to a call of
nature because it was there that the people of the place used to go for that purpose. A few minutes
later, he then again saw her emerge from the thicket with her clothes stained with blood both in front
and back, stagerring and visibly showing signs of not being able to support herself. He ran to her aid
and having noted that she was very weak and dizzy, he supported and helped her back to her house
and placed her in her bed.

Aguilar asked what had happened to her. The appellant answered that she was very dizzy. Aguilar
called Adriano Comcom who lived nearby to be there and help. He asked Comcom to take bamboo
leaves to stop the hemhorrage of the appellant. Comcom had scarcely gone about five brazas when
he saw the body of newborn baby near a path adjoining the thicket where the appellant had gone a
few moments before. Comcom informed Aguilar of it and the latter told him to bring the body to the
appellant’s house. Upon being asked whether the baby was hers or not, the appellant answered in the
affirmative.

In the afternoon of the said day, Dr. Emilio Nepomuceno went to the appellant’s house and found her
still lying in bed still bleeding. In his opinion, the physician declared that the appellant gave birth in
her house, and afterwhich, she threw the child into the thicket to kill it for the purpose of concealing
her dishonor from her husband, because the child was not his but with another man with whom she
had previously has amorous relations. Nepomuceno testified that the appellant admitted killing her
child.

ISSUE:

What was the crime committed by appellant?

RULING:

The evidence certainly does not show that the appellant , in causing her child’s death in one way or
another, or in abandoning it in the thicket, did so willfully, consciously, or imprudently. She had no
cause to kill or abandon it, to expose it to death, because her affair with a former lover, Kirol took
place three years before the incident. The husband of the appellant testified at the trial affirming the
belief that the child was his.

Infanticide and abandonment of a minor, to be punishable must be committed willfully and

consciously, or at least it must be the result of a voluntary, conscious and free act or omission. Even in
cases where said crimes are committed through mere imprudence, the person who commits them,
under said circumstances, must be in the full enjoyment of his mental facilities, or must be conscious
of his acts, in order that he may be held liable.

The law exempts from criminal liability any person who acts under the circumstances in which the
appellant acted in this case, by giving birth to a child in the thicket and later abandoning it, not
because of imprudence or any other cause than that she was overcome by severe dizziness and
extreme debility, with no fault or intention on her part, she should not be blamed therefor because it
all happened by mere accident, from liability any person who so acts and behaves under such
circumstances (Art. 12, subsection 4, RPC).

Taking into account the foregoing facts and considerations, and granting that the appellant was aware
of her involuntary childbirth in the thicket and that she later failed to take her child therefrom, having
been so prevented by reason of causes entirely independent of her will, and it appearing that under
such circumstances said appellant has the fourth and seventh exempting circumstances in her favor, is
hereby acquitted of the crime of which she had bee accused and convicted.