G. R. No. 1441, December 29, 1903

3 Phil.
118
[ G. R. No. 1441, December 29, 1903 ]
THE UNITED STATES, COMPLAINANT AND APPELLEE, VS.

SEVERA BERGANTINO, DEFENDANT AND APPELLANT.
DECISION
COOPER, J.:
The defendant, Severa Bergantino, is charged with the crime of homicide, committed as
follows:
"On the evening of the 26th day of February last, the deceased, Eugenia Bernales,
being at the house of Dolores Abelarde for the purpose of collecting 7 reals and 8
cents, which the, latter owed to the former, the said Abelarde not having paid the same,
a dispute arose, and,the said accused, Severa Bergantino, taking part in the dispute,
inflicted two wounds upon the stomach of the deceased with a knife, which caused the
death ot the said Eugenia Bernales on the 28th of the said month of February."
The defendant was found guilty in the Court of First Instance and was adjudged to
imprisonment of eight years and six months of prision mayor and to pay the costs of the
proceedings, with the accessories, without adjudging indemnification for the damages, there
being no claim for such by the heirs or relatives of the deceased. From the judgment the
defendant appeals to this court.
The testimony in the case and on which the decision is based discloses the following facts:
In the pueblo of Asencia, in the Province of Iloilo, on the 26th day of November, 1902, the
deceased, Eugenia Bernales, went to the house of Dolores Abelarde, the mother of the
accused, for the purpose of collecting the sum of 7Â£ reals which the deceased had won in a
game on the morning of that day from Dolores. Dolores refused to pay the said sum; the
deceased insisted, saying that she needed the money in order to buy supplies for the family;
after some warm words had passed between the women the deceased stated that the accused
was wanting in virtue and applied other offensive epithets to her. The accused was present,
and up to this time had taken no part in the dispute between her mother and the deceased.
Eugenia left the presence of Dolores and started down the steps, and when reaching the
lower story, Severa having accompanied her, they came to blows. The accused at the time of
the quarrel had a penknife in her hand with which she inflicted mortal wounds upon the
deceased.
While there is some conflict, the testimony is sufficient to sustain these views, and it is
clear that the defendant is guilty of the offense of homicide.
It is contended by the attorney for the defendant that the court failed to take into
consideration all of the extenuating circumstances which existed in the case, and, in
particular, that the penalty assessed by the court was placed in a grade too high in view of
the testimony as to the age of the accused.
Article 85 of the Penal Code provides that:
"Upon a person under 15 years or over 9 years of age, who is not exempt from liability
by reason of the court having declared that he acted with the exercise of judgment, a
discretionary penalty should be imposed, but always lower, two degrees at least, than
that prescribed by law for the crime which he committed."
Did the evidence in the case show that the accused was under 15 years of age? If so, the
penalty should have been two degrees, at least, lower than that prescribed by law for the
crime which was committed.
The learned judge states in his decision that the accused is a married woman, apparently
about 18 or 19 years of age; that while the proof presented on the part of the defendant
tended to show that she was less than 15 years old at the time of the occurrence; that these
declarations of the witnesses were all hearsay, as neither the accused nor her mother, who
testified as to her age, knew her present age; that there was not presented during the trial the
baptismal certificate nor any other document showing the date of the birth of the accused;
that to judge by the appearance of the accused she had passed the age of 15 years; that it was
impossible to determine with certainty this point; and the court reached the conclusion that
the accused was more than 15 years of age.
The testimony of the defendant, her mother, and her husband was to the effect that the
accused had not reached the age of 15 at the time of the commission of the offense.
The mother of the accused testified that her daughter was 14 years and 4 months old and
states that the reason she knew her age was because the defendant was born about the time
of the cholera epidemic of 1889,
The accused testified that she was 14 years old when she was married, three months before
the trial.
The husband of the accused testified that she was 14 years old and that he knew this because
when he was married they told him that the accused was only 14 years of age.
The testimony of the mother was not hearsay, but was by one who had direct knowledge of
the age of the accused.
The testimony of the husband, though hearsay, is such evidence as is commonly received
by the courts upon the subject of pedigree, which furnishes an exception to the rule with
reference to the admissibility of hearsay evidence. (1 Greenl., sec. 114 C.)
While the,evidence upon this point is not entirely satisfactory, yet it is sufficient to raise a
reasonable doubt upon this material question in the case, to the benefit of which the
defendant is entitled. The baptismal certificate or other evidence of this character would
have been much more satisfactory to the court,and, if obtainable, should have been
introduced. Neither the prosecution nor the defendant saw fit to introduce such evidence.
This finding of the court as to the age, not being supported by evidence sufficient to satisfy
this court beyond a reasonable doubt, will require a reversal of the judgment and a
modification of the sentence by reducing the penalty in accordance with the requirements of
article 85 of the Penal Code at least two degrees below that prescribed by law for the crime
which was committed by the defendant, and the imposition of a discretionary penalty,
which, in view of the extenuating circumstances we find as existing in the case, we now
reverse the judgment and sentence the defendant to the penalty of six months
imprisonment, arresto mayor in its maximum degree, with costs of the proceedings
adjudged against the defendant. So ordered.
Arellano, C. J., Torres, Willard, Mapa, McDonough, and Johnson, JJ., concur.

G. R. No. 1441, December 29, 1903

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G. R. No. 1441, December 29, 1903

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3 Phil.

[ G. R. No. 1441, December 29, 1903 ]

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS.

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