THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. PANTALEON V.

PELAYO, accused and appellant

1966-09-20 | G.R. No. 05152-CR

VILLAMOR, J.:

Appeal from a judgment convicting the accused-appelant Pantaleo V. Pelayo, Jr. of the crime of light oral defamation and
sentencing him "to suffer an imprisonment of twenty (20) days of arresto menor; to indemnify the offended party in the
concept of nominal damages for injury of reputation in the sum of P1,000.00 and in case of insolvency to suffer the
corresponding subsidiary imprisonment which shall, however not exceed one-third (1/3) of the principal penalty; and to
pay the costs."

The offended party was then Governor, now Senator, Alejandro Almemdras. The appellant was then city councilor of
Davao City.

It appears that on November 15, 1956, in the office of Atty. Clapano, appellant told the latter, within the hearing of
Franscisco Banez, Rafael,Mascarinas and Prisco Parmisano , that while making one of his rounds to investigte the
existence f gambling in ths community, a chinese operator named Lim Peng told him that the Gov. Almendras used to
receive from the chinese P500.00 protection money. Thus he said to Clapano:

Another operator whom i befriend, cofided to me that,he used to give P500.00 monthly. The governor was not
satisfied with instead demanded that amount to be hiked to P1,000 a month but because i could no longer afford
that amount, I gave to almendras my watch costing P250.00. Failure to gave P1,000.00 a,month, Gov. Almendras
raided my place." and other of similar imoort.

On the following day , appellant delivered a priveledge speech during the regular session of the City Council of Davao
City wherein, although without directly mentioning the governor as receiving "tongs", the reference to the latter after a
series of interpellations and answers during the speech, because obvious.

Appellant does not deny but even admits having uttered these words and phrases to Clapano. However, he offered as
defenses the following:

1 That he uttered those words and phrases in confidence to Clapano and that they are covered by the rule of
privileged communication;

2 That since the crime as charged which is for serious slander is different from, and not included in, the as proved
which is intriguing against honor, the conviction is illegal;

3 That he uttered those words and phrases in self-defense to what then Gov. Almendras in the latter's speech had
stated of him in another place a few says before;

4 The award for nominal damages should have been set off by what he was also entitled to as a result of the
slander made to him by Gov. Almendras on a previous occasion.

On appellant's first contention that the utterances made by him to Clapano were given in confidance to the latter and that
the same should be covered by the rule on privileged communication, he argues that since Clapano is himself a member
of the City Council, he, appellant, had the legal and moral duty to make the communication to him.

We overrule this contention. In the first place, his contention of confidence is inconsistent with his other contention of
self-defense. If the communication was for the purpose of self-defense, it should not have been made in confidence as be
alleged; it should have received some amount of publicity. In the second place, the records also show that on the
following day he delivered a speech at the session of the City Council, wherein although he did not mention names he
made it obvious that he was referring to the complainant as receiving money from gambling operators. In the third place
there were others who heard the remarks when he was talking to Clapano. He could not have given the communication,
therefore, in confidence.

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On his other contention that the remarks should be covered by the rule on privileged communication, we consider the
same rule as untenable. We cannot accept as true that he was actuated by a sense of duty, moral, legal, or social to
communicate the matter to Clapano. He, himself was a member of the City Council. If he was carried by that sense of
duty as he claims, it was not necessary for him to give his information to Clapano who was not his superior nor the party
to whom the information should be given. He could have made the revelation himself either in open session or by taking
the necessary steps to have the matter investigated. As,a co-member of the City Council appellant owes no,longer legal
or moral duty to Clapano.

Tue next point raised is that the evidence adduced is for intriguing against honor and not light moral defamation.

The facts do not constitute intriguing against honor because the information given by appellant to Clapano, within the
hearing of others, allegedly came from a definite source, to wit: Lim Peng. Where the source of the information can be
pin-pointed and definitely determined, as what appellant had asserted by stating that it was from a certain Lim Peng, and
he, appelant, àdopting as his own the information he has obtained, passes the same to another for the purpose of causing
dishonor to complainant's reputation, the act is not intriguing against honor, but clearly,one of slander. But where the
source or the author of the derogatory information cannot be determined and the defendant borrows the same and,
without subscribing to the truth thereof, passes it to others, the defendant's act is one of intriguing against honor.

We agree that, in appropriate cases, self-defense in libel as,well as in slander, maybe,invoked as a legitimate defense.
But the situation obtaining in the instant case is not one of those where that defense can be validly invoked. Even
assuming that on a previous occasion the complainant in his speech had made derogatory with scurrilous words does not
bring him within the protection of self-defense. His act of telling Clapano, within the hearing of others, that Almendras was
receiving P500.00 monthly from operators of "panchong" and that he was demanding an increase to P1,000.00, is entirely
independent of, and apart from, the alleged imputation made to him by complainant. For self-defense to exist in instances
such as this, the defendant should not go beyond explaining what was previously said of him for the purpose f repairing or
minimizing if not entirely removing the effect of the damage caused to him. The principle does not license him to utter
blow-for-blow scurrilous language in return for what,he received. This is not as we understand it, what,the principle
embraces.

Where the defender goes beyond more explaining his side and/or repairing, minimizing, or removing the effect of the
damage by hitting back with equally if not more scurrilous remarks against the one who first made the imputation, his
retaliation becomes entirely an independent act of his own of which he may stand to answer the consequences. The
defense will lie only where the defendant makes a defense of the imputation previously made against him by another
without, in turn, making slanderous remarks against the latter unless the remarks are necessary for his explanation or
defense. In other words, unless make scurrilous remarks or language against the person who has defamed him, the
defendant is not justified to hit back with slanderous words that will subject him to criminal prosecution for libel or slander.
In the case at bar, if it is true that on a previous occasion the complainant had imputed to the defendant that he, the latter,
was receiving money from gambling operators, the defendant was not licensed to make the same imputation or
accusation because to do that is not an act of defense or one constitutive of an element thereof, but an aggression itself.
Hitting back with words of same derogatory nature and degree does not repel the attack made against one's honor. To
repel that attack, the defendant make an explanation of the imputation, and it is only where, if by explaining he must of
necessity have to use scurrilous and slanderous remarks, that he may legally be allowed to do so without placing himself
under criminal prosecution.

We share the view of the Solicitor General that the award of nominal damages should be reduced to the amount of
P200.00. This amount, however, is not for the purpose of indemnifying the plaintiff, but as,a form of vindication or
recognition of a right that has been violated or invaded by the defendant (Art. 2221, Civil Code).

The penalty fr the light oral defamation is arresto menor or a fine not exceeding P200.00 (Art. 358, last part). We have
come across no portion of appellant's brief invoking any mitigating circumstances in his favor; nor is there evidence of
existence of any aggravating circumstances.

WHEREFORE, the judgment of conviction appealed from is affirmed, but the sentence imposed upon appellant is hereby
modified in the sense that he should pay,a fine of P100.00 with subsidiary imprisonment not to exceed 15 days in case of
insolvency; to pay nominal damage to the offended party in the sum of P200.00 and the costs of this action.

Perez and Nolasco, JJ., concur.

Judgment modified.
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