Special Case of Direct Assault

22 Jan


It all started with a recitation in Criminal Law 2 subject. That morning, the topic being discussed is about Direct Assault, under Article 148 of the Revised Penal Code (Act No. 3815).

Article 148. Direct assaults. – Any person or persons who, without a public uprising, shall employ force or intimidation for the attainment of any of the purpose 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 P1,000 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 P500 pesos shall be imposed.

There are actually two ways of committing Direct Assault based on the above provision.  First, by 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. Second, by any person or persons who, without a public uprising, 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.

Suppose we have this scenario where two judges, both persons in authority, agreed to fight each other in a public place, can there be Direct Assault?

My answer, based on 2-second interval of thinking is NO. There can be NO DIRECT ASSAULT.

According to the professor, my answer is wrong.

I was stunned. How can I be wrong? When does the act of consenting each other to fight (and commit felony) which resulted to injuries can (still) be a valid cause of action?

It was a few days after that question that I realized that I am actually not expected to answer it correctly because it was a not so easy question of law at early freshman stage. The following are the elements of Direct Assault:

  1. That the offender (a) makes an attack, (b) employs force, (c) makes a serious intimidation, or (d) makes a serious resistance.
  2. That the person assaulted is a person in authority or his agent.
  3. That at the time of the assault the person in authority or his agent (a) is engaged in the actual performance of official duties, or [b] that he is assaulted by reason of the past performance of official duties.
  4. That the offender knows that the one he is assaulting is a person in authority or his agent in the exercise of his duties.
  5. That there is no public uprising.

Take the hypothetical question (which according to the professor was based on actual events) in analysis. All the five (5) elements may be well satisfied. Unfortunately, I could not find a jurisprudence to seal the issue. After a web search, I found a somewhat similar instance in the same place as claimed by our law professor.

In Caoibes Jr. vs. Hon. Ombudsman (G.R. No. 132177.  July 19, 2001), the facts were closely related. In this case, Judge Caoibes boxed a fellow Judge Alumbres within the hallways of their chambers. A criminal case was brought by Judge Alumbres to the Ombudsman for physical injuries, malicious mischief for the destruction of eyeglasses and assault upon person in authority. Another complaint (administrative) was filed with the Supreme Court praying for the dismissal of Judge Caoibes from the judiciary on the ground of grave misconduct or conduct unbecoming a judicial officer. The Supreme Court held and directed the Ombudsman to dismiss the complaint filed with them and refer the same to them for appropriate action. The Court later decided the case under A.M. No. RTJ-99-1431 dated January 23, 2002, which held Judge Caoibes “guilty of violating the Code of Judicial Conduct and hereby impose upon him a fine of TWENTY THOUSAND PESOS (P20,000.00), with a warning that a repetition of the same or similar acts in the future will be dealt with more severely.” (What happened to the criminal offense?) Take note that this was an administrative and not a criminal proceeding.

But there was a material discrepancy in the case that would not be conclusive of res judicata in a strict sense. The two judges did not consent nor agreed to fight each other. The undisputed facts showed that Judge Caoibes was aggressor and Judge Alumbres as the aggrieved. The question that must remain: “will the doctrine of  pari delicto apply in Direct Assault?”

In the case of Gelig vs. People (G.R. No. 173150.  July 28, 2010), the Court had the occasion in demonstrating a more discreet scenario of its application. Two public school teachers falling under the definition of “persons in authority under Art.152 of the Revised Penal Code were involved, one Lydia Gelig and the other Gemma Micarsos. The RTC decided the case convicting Lydia with complex crime of “Direct Assault with Unintentional Abortion”.  The Court of Appeals vacated the trial court ruling with Slight Physical Injuries.  It ruled that Lydia cannot be held liable for direct assault since Gemma descended from being a person in authority to a private individual when, instead of pacifying Lydia or informing the principal of the matter, she engaged in a fight with Lydia.  Likewise, Lydia’s purpose was not to defy the authorities but to confront Gemma on the alleged name-calling of her son.

It seems that for some reason, the Court of Appeals realized that there is equal fault or pari delicto in the case, thereby mitigating the penalty imposed to Lydia . Unfortunately, this was reversed by the Supreme Court:

x x x

The fact remains that at the moment Lydia initiated her tirades, Gemma was busy attending to her official functions as a teacher.  She tried to pacify Lydia by offering her a seat so that they could talk properly, but Lydia refused and instead unleashed a barrage of verbal invectives.  When Lydia continued with her abusive behavior, Gemma merely retaliated in kind as would a similarly situated person.  Lydia aggravated the situation by slapping Gemma and violently pushing her against a wall divider while she was going to the principal’s office.  No fault could therefore be attributed to Gemma. (emphasis supplied)

x x x

WHEREFORE, the Decision of the Court of Appeals finding petitioner Lydia Gelig guilty beyond reasonable doubt of the crime of slight physical injuries is REVERSED and SET ASIDE.  Judgment is hereby rendered finding Lydia Gelig guilty beyond reasonable doubt of the crime of direct assault and is ordered to suffer an indeterminate prison term of one (1) year and one (1) day to three (3) years, six (6) months and twenty-one (21) days of prision correccional.   She is also ordered to pay a fine of P1,000.00. SO ORDERED.

The applicability of pari delicto is still disputable above. In the ruling, the Supreme Court relied on the theory that Gemma is of no fault, hence pari delicto is not present. So, can Direct Assault really apply to a pure case of “equal fault”?

Finally (I was hoping it to be), in the case of Ubarra vs. Mapalad (A.M. No. MTJ-91-622 March 22, 1993) which interestingly involved a lawyer and a judge, the Supreme Court discussed  pari delicto taken in the criminal law environment:

x x x

Under the pari delicto doctrine, where the parties to a controversy are equally culpable or guilty, they shall have no action against each other, and it shall leave the parties where it finds them. This doctrine finds expression in the maxims “ex dolo malo non oritur actio”and“in pari delicto potior est conditio defendentis.

We find the application of the pari delicto theory in a criminal case to be strange, to say the least. In the first place, the rule on pari delicto is a rule in civil law. It is principally governed by Articles 1411 and 1412 of the Civil Code under the Chapter on Void or Inexistent Contracts, and presupposes a situation where the parties are in culpability similarly situated, i.e., in eodem loco. (Jandusay vs. Court of Appeals, 172 SCRA 376 [1989]). That this rule can by no means apply in a criminal case is evidenced by the aforesaid Article 1411 which provides in part that “[W]hen the nullity proceeds from the illegality of the cause or object of the contract, and the act constitutes a criminal offense, both parties being in pari delicto, they shall have no action against each other, and both shall be prosecuted.” Secondly, in view of the broader grounds of public policy, the rule may not be invoked against the State. Thirdly, in the prosecution of public crimes, the complainant is the State, — i.e., the People of the Philippines — while the private offended party is but a complaining witness. Any criminal act perpetrated by the latter on the occasion of the commission of the crime, or which may have given rise to the criminal act imputed to the accused is not the act or conduct of the State and can by no means bind it under the doctrine of pari delicto. To rule otherwise would be to establish a dangerous doctrine which would irreparably weaken the very foundations of the criminal justice system and frustrate the administration of justice. Whatever wrongful act may have been committed by the offended party may only be invoked to justify the accused’s own act or mitigate his liability. (emphases supplied)

It appears that the pronouncements are self-explanatory and conclusive(?). I will have to seal the answer to the question with the issue. It is admitted and accepted, until then again.

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Posted by on January 22, 2013 in Criminal Law


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