United States vs. Clemente

A conviction of a lesser included offense on appeal opens the entire case for review, permitting the appellate court to convict the accused of the greater offense charged in the information where both offenses are charged together and the lesser is included in the greater. Courts of general jurisdiction may take judicial notice of municipal ordinances without their being introduced in evidence when such ordinances form an integral part of the offense under Article 568, paragraph 2, of the Penal Code.

Enrique Clemente was a motorman operating Street Car No. 111 on the Pasay-Cervantes line of the Manila Electric Railroad and Light Company in Manila. The case arose under the Philippine Penal Code's provisions on negligence resulting in homicide, which distinguish among three classes: reckless negligence, simple negligence with violation of a regulation, and simple negligence without violation of any rule. Article 568, paragraph 2, of the Penal Code makes violation of municipal ordinances an integral and essential part of the crime of simple negligence, thereby requiring courts to know and enforce such ordinances in that class of cases.

On June 17, 1912, Enrique Clemente was operating Street Car No. 111 on the Pasay-Cervantes line of the Manila Electric Railroad and Light Company along Dakota Street in Manila. A three-year-old child named Juan Garcia was crossing the street-car track. The child's mother, Mrs. Chavez, had been buying crude oil at a nearby Chinese tienda and, upon turning around, saw her child about to cross the track and the street car approaching at high speed. She raised both hands and signaled the motorman to stop, but the car did not slow down. Multiple witnesses—Mr. Tello, Mr. de Jesus, Mrs. Reyes, and Mr. Velasco—corroborated that the street car was running at full speed with the lever set at nine points, that the motorman made no effort to stop until after the child had been struck and killed, and that no warning bell was rung.

The street car struck the child near post No. 961 and dragged the body along the track for approximately 15 to 20 meters before leaving it unconscious, then continued for another 20 meters before stopping opposite post No. 962. Posts 961 and 962 are 36.8 meters apart, demonstrating the speed at which the car was traveling and the distance required to bring it to a halt. Timing tests conducted shortly after the accident by Patrolman Rasmussen and Secret-Service Agent Hall established that a street car with the lever set at nine points travels at approximately 23 to 25 miles per hour, well above the 12-mile-per-hour limit prescribed by city ordinance for street cars within the corporate limits of Manila. The street was clear and visibility was good at the time of the incident, which occurred at approximately 6:10 in the evening.

Clemente's defense witnesses offered testimony tending to exculpate him, but the Court found their evidence lacking the directness and force of the prosecution's proof and insufficient to overcome the overwhelming weight of the Government's case. The trial court found that Clemente was not recklessly negligent but was careless and negligent in performing his duty and had violated city regulations on the running of street cars, resulting in the child's death. The court acquitted him of homicide through reckless negligence but convicted him of the lesser offense of violation of regulations through imprudence and negligence, sentencing him to five months of arresto mayor and costs.

• Judicial Notice of Municipal Ordinances: The appellant contended that the trial court had no authority to find as fact that a municipal ordinance was violated because the ordinance was not introduced in evidence and there was no proof of its existence, arguing that courts of general jurisdiction have no power to take judicial notice of the existence or contents of a municipal ordinance.
• Insufficiency of Evidence for Ordinance Violation: The appellant argued that even if the court could take judicial notice of the ordinance, there was no evidence to support the finding that the ordinance had been violated.

• Judicial Notice of Municipal Ordinances: Whether a court of general jurisdiction may take judicial notice of the existence and contents of municipal ordinances without their being introduced in evidence.
• Sufficiency of Evidence for Ordinance Violation: Whether the evidence supported the finding that the municipal ordinance regulating street car speed was violated.
• Conviction of Greater Offense on Appeal: Whether an appeal from a conviction of a lesser included offense permits the appellate court to convict the accused of the greater offense originally charged in the information.

• Judicial Notice of Municipal Ordinances: Yes. Courts of general jurisdiction may take judicial notice of municipal ordinances because Article 568, paragraph 2, of the Penal Code makes violation of regulations an integral and essential part of the crime defined therein, requiring courts to know and enforce such ordinances.
• Sufficiency of Evidence for Ordinance Violation: Yes. The evidence showed the street car was running at nine points (approximately 23 miles per hour) in a 12-mile-per-hour zone and required 36.8 meters to stop after striking the child, sufficient to sustain the finding that the speed ordinance was violated.
• Conviction of Greater Offense on Appeal: Yes. Where both the higher and lower degrees of the same crime are charged in the information and the lesser offense is included in the greater, an appeal from conviction of the lower grade opens the entire case for review and permits conviction of the greater offense if the evidence warrants.

• Judicial Notice of Municipal Ordinances: The appellant's argument rested on the proposition that courts take judicial notice only of laws they are required to enforce. Under Article 568, paragraph 2, of the Penal Code, courts of general jurisdiction are required to enforce municipal ordinances because their violation constitutes an integral and essential part of the crime of simple negligence defined in that paragraph. Knowledge of municipal ordinances is therefore necessary for proper administration of the law in this class of cases, and courts are at liberty to take judicial notice of them. If a court errs in assuming the existence or provisions of an ordinance, the judgment is subject to correction on appeal in the same manner as when a court erroneously assumes the existence of a statute.

• Sufficiency of Evidence for Ordinance Violation: Multiple witnesses testified that the street car was running "very fast" and at "nine points" on the lever. Timing tests conducted by Patrolman Rasmussen and Secret-Service Agent Hall established that nine points corresponds to approximately 23 to 25 miles per hour. The city ordinance prohibited street cars from exceeding 12 miles per hour within the corporate limits. Additionally, the car struck the child near post No. 961 and could not stop until reaching post No. 962, a distance of 36.8 meters, further demonstrating excessive speed. These facts were sufficient to sustain the finding that the ordinance was violated.

• Conviction of Greater Offense on Appeal: The Penal Code recognizes three classes of negligence in connection with homicide: (1) reckless negligence—acts of improvidence, thoughtlessness, carelessness, negligence, unskillfulness, and imprudence executed without the precautions that the most common prudence would require; (2) simple negligence with violation of an ordinance or regulation enacted by a competent body for the public good; and (3) simple negligence without violation of any rule, punishable as a misdemeanor under Article 605 (Spanish) of the Penal Code. The crime of which the accused was convicted—homicide through simple negligence with violation of an ordinance—is a lesser included offense of homicide through reckless negligence, as charged in the information, because the commission of the homicide was accompanied by a violation of the ordinance, making the lesser offense necessarily included in the greater. Under the authority of Trono vs. United States and Kepner vs. United States, an appeal from conviction of the lower grade opens the whole case for reconsideration on all the evidence, requiring the appellate court to pronounce such judgment as law and justice demand. The evidence was overwhelming that the accused acted with reckless negligence: he saw the child in the street, very probably making its way toward the track, yet continued the car at maximum speed without attempting to reduce it to a controllable level. It is the duty of any person driving a vehicle to reduce speed and maintain control ready to stop when a child below the age of understanding is seen in a position where it could place itself in danger. The driver must substitute his judgment for the child's, as a child of tender years has no judgment of its own. The accused's failure to take any adequate precaution constituted reckless negligence, not mere simple negligence.

• Judicial Notice of Municipal Ordinances — Courts of general jurisdiction may take judicial notice of the existence and contents of municipal ordinances when such ordinances form an integral part of the offense charged under the Penal Code, particularly under Article 568, paragraph 2, which makes violation of regulations an essential element of the crime of simple negligence. The rationale is that courts required to enforce municipal ordinances must know them, and errors in judicial notice are correctable on appeal like any other legal error.

• Three Classes of Negligence Under the Penal Code — The Penal Code distinguishes three classes of negligence in connection with homicide or other crimes: (1) reckless negligence, consisting of every act of improvidence, thoughtlessness, carelessness, negligence, unskillfulness, and imprudence executed without the precautions that the most common prudence would require; (2) simple negligence with violation of an ordinance or regulation enacted by a competent body for the public good; and (3) simple negligence without violation of any rule, punishable as a misdemeanor under Article 605 (Spanish) of the Penal Code. The accused's conduct fell under the first class, as he failed to exercise the most ordinary and common care by driving at maximum speed despite visible danger to a child.

• Duty of Drivers Toward Children of Tender Years — A person driving a vehicle in public thoroughfares must reduce speed and maintain control ready to stop at any moment if a child below the age of understanding is seen in a position where it could, by any reasonable chance, place itself in danger. The driver must substitute his judgment for the child's, as a child of tender years has no judgment of its own. Anticipation of a child's sudden movements is required; a child darting in front of a vehicle is no excuse if the driver saw the child and failed to take precautions.

• Appeal from Conviction of Lesser Included Offense Opens Entire Case — Where both the higher and lower degrees of the same crime are charged in the same information, and the lesser offense is included in the greater as a matter of fact, an appeal from a conviction of the lower grade opens the entire case for reconsideration on all the evidence, permitting the appellate court to convict the accused of the greater offense if the evidence warrants. This doctrine does not extend to cases where the lesser offense is not included in the greater or where the two crimes are charged in separate informations.

• "It is the duty of any person driving a vehicle in the public thoroughfares to reduce the same control, ready to be stopped at any moment, if he sees a child below the years of understanding in such place that it can, by any reasonable chance, place itself in a dangerous position with respect to the vehicle." — This passage articulates the standard of care owed by drivers toward children in the street, central to the Court's finding of reckless negligence.

• "For the proper enforcement of this paragraph, knowledge of municipal ordinances on the part of the court is necessary, as they become a part of the general law which the courts are called upon to administer in this class of cases." — This establishes the rationale for judicial notice of municipal ordinances under Article 568 of the Penal Code.

• "Having no judgment of its own, the drivers of vehicles must substitute their judgment for its; not having the intelligence to direct itself, men who drive cars or vehicles must exercise their intelligence." — This defines the standard of care owed to children of tender years, requiring drivers to anticipate unpredictable movements and act accordingly.

• Trono vs. United States, 199 U.S. 521 (11 Phil. Rep. 726) — Controlling authority cited for the proposition that an appellate court may convict an accused of a greater offense on appeal from a conviction of a lesser included offense, where both are charged in the same information. Followed and applied to uphold the conviction of homicide through reckless negligence.

• Kepner vs. United States, 195 U.S. 100 (11 Phil. Rep. 669) — Cited alongside Trono as authority for the scope of appellate review permitting conviction of the greater offense when the lesser included offense is the basis of the appeal. Followed.

• Article 568, Paragraph 2, Penal Code — Defines the crime of committing an offense through simple negligence while violating any regulation, punishable by arresto mayor in its medium and maximum degree. Applied as the basis for requiring courts to take judicial notice of municipal ordinances, since violation of regulations is an integral and essential part of the offense defined therein.

• Article 605 (Spanish), Penal Code — Punishes simple imprudence or negligence without violation of any rule as a misdemeanor. Discussed to distinguish the third class of negligence from reckless negligence and simple negligence with violation of an ordinance.

• Manila City Ordinance on Street Car Speed — Provides that "it shall be unlawful for any street car to run at a greater speed than 12 miles per hour within the corporate limits of said city." Applied to determine that the accused's operation at approximately 23 miles per hour constituted a violation, supporting both the conviction for simple negligence with violation of a regulation and the finding of reckless negligence.

Arellano, C.J., Torres, J., and Mapa, J., concurred.

• Trent, J. — Dissented. The text does not provide the reasoning for the dissent.