19 People v.

Bandian, 63 Phil 530 (1936) 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
G.R. No. 45186           September 30, 1936 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
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, had killed her child, when he went to her house at the time and on the date above-
vs. stated.
JOSEFINA BANDIAN, defendant-appellant.
The prosecuting attorney and the lower court giving absolute credit to Dr.
Jose Rivera Yap for appellant. Nepomuceno whose testimony was not corroborated but, on the contrary, was
Office of the Solicitor-General Hilado for appellee. 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
DIAZ, J.: 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
Charged with the crime of infanticide, convicted thereof and sentenced to reclusion abandonment having resulted in the death of the minor allegedly abandoned.
perpetua and the corresponding accessory penalties, with the costs of the suit,
Josefina Bandian appealed from said sentence alleging that the trial court erred:
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
I. In taking into consideration, to convict her, her alleged admission to Dr. the child were not caused by the hand of man but by bites animals, the pigs that
Nepomuceno that she had thrown away her newborn babe, and usually roamed through the thicket where it was found.

II. In holding her guilty of infanticide, beyond reasonable doubt, and in Infanticide and abandonment of a minor, to be punishable, must be committed wilfully
sentencing her to reclusion perpetua, with costs. 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 facts of record ma be summarized as follows: 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
At about 7 o'clock in the morning of January 31, 1936, Valentin Aguilar, the may be held liable.
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 The evidence certainly does not show that the appellant, in causing her child's death
people of the place used to go for that purpose. A few minutes later, he again saw her in one way or another, or in abandoning it in the thicket, did so wilfully, consciously or
emerge from the thicket with her clothes stained with blood both in the front and back, imprudently. She had no cause to kill or abandon it, to expose it to death, because
staggering and visibly showing signs of not being able to support herself. He ran to her affair with a former lover, which was not unknown to her second lover, Luis Kirol,
her aid and, having noted that she was very weak and dizzy, he supported and took place three years before the incident; her married life with Kirol — she considers
helped her go up to her house and placed her in her own bed. Upon being asked him her husband as he considers her his wife — began a year ago; as he so testified
before Aguilar brought her to her house, what happened to her, the appellant merely at the trial, he knew that the appellant was pregnant and he believed from the
answered that she was very dizzy. Not wishing to be alone with the appellant in such beginning, affirming such belief when he testified at the trial, that the child carried by
circumstances, Valentin Aguilar called Adriano Comcom, who lived nearby, to help the appellant in her womb was his, and he testified that he and she had been eagerly
them, and later requested him to take bamboo leaves to stop the hemorrhage which waiting for the birth of the child. The appellant, therefore, had no cause to be
had come upon the appellant. Comcom had scarcely gone about five brazas when he ashamed of her pregnancy to Kirol.
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 If to the foregoing facts is added the testimony of the witnesses Valentin Aguilar and
bring the body to the appellant's house. Upon being asked whether the baby which Adriano Comcom that the child was taken from the thicket and carried already dead to
had just been shown to her was hers or not, the appellant answered in the affirmative. 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
Upon being notified of the incident at 2 o'clock in the afternoon of said day, Dr. Emilio she was helped to go up to her house and to lie in bed, it will clearly appear how far
Nepomuceno, president of the sanitary division of Talisayan, Oriental Misamis, went from the truth were Dr. Nepomuceno's affirmation and conclusions. Also add to all
to the appellant's house and found her lying in bed still bleeding. Her bed, the floor of these the fact that the appellant denied having made any admission to said physician
her house and beneath it, directly under the bed, were full of blood. Basing his and that from the time she became pregnant she continuously had fever. This illness
opinion upon said facts, the physician in question declared that the appellant gave 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 On January 31, at about 7 o'clock in the morning, she went down from her house and
is a primipara, being then only 23 years of age, and therefore inexperienced as to entered a thicket about four or five brazas away, where the residents of said place
childbirth and as to the inconvenience or difficulties usually attending such event; and responded to the call of nature. After some minutes the accused emerged from the
the fact that she, like her lover Luis Kirol — a mere laborer earning only twenty-five thicket staggering and apparently unable to support herself. Her neighbor Valentin
centavos a day — is uneducated and could supplant with what she had read or Aguilar, who saw her enter the thicket and emerged therefrom, ran to help her,
learned from books what experience itself could teach her, undoubtedly were the supported her and aided her in going up to her house and to bed. Asked by Aguilar
reasons why she was not aware of her childbirth, or if she was, it did not occur to her what happened to her, she merely answered that she was very dizzy. Thinking that
or she was unable, due to her debility or dizziness, which causes may be considered he alone was unable to attend to her, Valentin Aguilar called Adriano Comcom, who
lawful or insuperable to constitute the seventh exempting circumstance (art. 12, lived nearby, and requested him to take bamboo leaves to stop the appellant's
Revised Penal Code), to take her child from the thicket where she had given it birth, hemorrhage. Adriano had scarcely gone about five brazas, when he saw the body of
so as not to leave it abandoned and exposed to the danger of losing its life. 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
The act performed by the appellant in the morning in question, by going into the Adriano Comcom to bring the child into the appellant's house. Upon being asked
thicket, according to her, to respond to call of nature, notwithstanding the fact that she whether or not the child shown to her was hers, the appellant answered in the
had fever for a long time, was perfectly lawful. If by doing so she caused a wrong as affirmative. After an autopsy had been made of the body, it was found that the child
that of giving birth to her child in that same place and later abandoning it, not because was born alive.
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 Unconscious, precipitate or sudden deliveries are well known in legal medicine
mere accident, from liability any person who so acts and behaves under such among young primiparæ who, by reason of their ignorance of the symptoms of
circumstances (art. 12, subsection 4, Revised Penal Code). 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
In conclusion, taking into account the foregoing facts and considerations, and de Medicine Legale, pages, 799-781; Annales de Medicine Legale, December 1926,
granting that the appellant was aware of her involuntary childbirth in the thicket and page 530; Vibert, Manual de Medicina Legal y Toxicologia, vol. I, pages 512-514).
that she later failed to take her child therefrom, having been so prevented by reason There is no doubt that the accused, in her feverish, weak and dizzy condition when
of causes entirely independent of her will, it should be held that the alleged errors she went into the thicket to defecate and being a primipara with no experience in
attributed to the lower court by the appellant are true; and it appearing that under childbirth, was not aware that upon defecating she was also expelling the child she
such circumstances said appellant has the fourth and seventh exempting was carrying in her womb. Believing that she did nothing more to respond to an
circumstances in her favor, is hereby acquitted of the crime of which she had bee urgent call of nature which brought her there, she returned home staggering for lack
accused and convicted, with costs de oficio, and she is actually confined in jail in of strength to support herself and for being dizzy, without suspecting that she was
connection with this case, it is ordered that she be released immediately. So ordered. 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.
Avanceña, C. J., and Abad Santos, J., concur.
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
Separate Opinions foresight or lack of skill.

VILLA-REAL, J.,  concurring: 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
I concur in the acquittal of the accused Josefina Bandian not on the ground that she is minor, because according to the above-cited legal provision there is deceit when the
exempt from criminal liability but because she has committed no criminal act or act punishable by law is performed with deliberate intent. Suffering from fever and
omission. 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
The evidence conclusively shows that on the day in question the accused Josefina child, of whose existence she was ignorant, to perish at the mercy of the elements
Bandian had spent a year of marital life with her lover Luis Kirol by whom she was and of the animals. Neither can it be held that she faultily committed it because, as
begotten with a child for the first time. Her said lover knew that she was pregnant and already stated, not knowing for lack of experience in childbirth that in defecating — a
both were waiting for the arrival of the happy day when the fruit of their love should be perfectly lawful physiological act, being natural — she might expel the child she
born. Since she became pregnant she continuously had fever, was weak and dizzy. 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.