ARTICLE 11.

REVISED PENAL CODE

8. Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 184601 November 12, 2012

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
MARCIAL MALICDEM y MOLINA, Accused-Appellant.

DECISION

LEONARDO-DE CASTRO, J.:

Before this Court is the appeal of the April 21, 200R Decision 1 of the Court of Appeals in CA-G.R. CR.-H.C.
No. 02522,2 which affirmed with modification the July 31, 2006 Decision3 of the Regional Trial Court (RTC),
Branch 42, Dagupan City in Crim. Case No. 2002-0561-D, entitled People of the Philippines v. Marcial
Malicdem y Molina, that found appellant Marcial Malicdem guilty beyond reasonable doubt for the crime of
murder.

On September 12, 2002, the following information for the crime of murder was filed against appellant:

That on or about August 11, 2002 in the evening at Brgy. Anolid, Mangaldan, Pangasinan, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon, with
intent to kill and with treachery, did then and there, willfully, unlawfully and feloniously attack, stab and hit
WILSON S. MOLINA, inflicting upon him a fatal stab wound on the vital part of the body, causing his
untimely death to the damage and prejudice of his heirs.

CONTRARY to Article 249 of the Revised Penal Code as amended by RA 7659.4

Appellant was arraigned on October 17, 2002 where he pleaded not guilty.5 Trial on the merits ensued
thereafter.

The prosecution presented the following as its witnesses: Dr. Ophelia T. Rivera (Dr. Rivera), Bernardo Casullar
(Bernardo), Joel Concepcion (Joel), Felipe Molina (Felipe), and Maricon Nicolas (Maricon).

The defense presented as witnesses appellant and his wife, Anabel Malicdem (Anabel). Essentially, the
appellant invoked self-defense to justify his participation in the cause of death of Wilson S. Molina (Wilson).

After both parties presented their respective evidence, the RTC rendered its Decision on July 31, 2006
convicting the accused of the crime charged.

The RTC summarized the testimonies of Bernardo and Joel in open court as follows:
On the night of August 11, 2002, as it was their practice after dinner, they met with Wilson near the artesian
well. At around 9:00 p.m., while they were seated on the septic tank, appellant arrived asking if they knew the
whereabouts of his godson, Rogelio6 Molina (Rogelio). They answered in the negative. They noticed that
appellant was reeking of alcohol and was drunk. Appellant asked again for the whereabouts of Rogelio. As they
stood to leave, appellant suddenly embraced Wilson and lunged a six-inch knife to the left part of his chest.
When appellant moved to strike again, Wilson was able to deflect this blow which resulted to a cut on his right
arm. Intending to help his friend, Bernardo was hit by the knife in his stomach. In the course of aiding Wilson,
Joel boxed the appellant. During the brawl, Francisco Molina, Rogelios father, arrived at the scene, but was
stabbed in the stomach by appellant. Appellant then ran away. Afterwards, Joel brought Wilson aboard a police
patrol car to the Region I Medical Center in Dagupan City where Wilson was declared dead on arrival.7

In her post-mortem report, Dr. Rivera, Municipal Health Officer of Mangaldan, Pangasinan, stated:

FINDINGS:

Abrasion, 1.2 x 0.5 cm, just above the eyebrow, lateral aspect, left.

Stabbed (sic) wound, 3 cm, wound directed laterally and downward, parasternal line, infraclavicular
area, left.

Abrasion (Teeth impression mark), middle third, anterior aspect, upper arm, left.

Stabbed (sic) wound, 3.5 cm, wound directed upward and posteriorly, middle third, medioposterior
aspect, forearm, right.

Abrasion, 0.5 x 0.8 cm, lateral aspect, knee, left.

Abrasion, 2 x 1 cm, knee, right.

CAUSE OF DEATH:

CARDIORESPIRATORY ARREST SECONDARY TO HYPOVOLEMIC SHOCK DUE TO STAB

WOUND.8

The RTC gave a gist of the testimonies of appellant and Anabel as follows: Appellant and Anabel were in their
house on the night of the incident. Appellant was looking after their children, aged four and seven, while Anabel
was cooking dinner. When Anabel informed appellant that dinner was ready, he and Anabel went out to look for
his godson, Rogelio. They went to the house of Rogelios parents to look for the latter. They were informed,
however, that Rogelio was not there. Rogelios mother advised them to look outside.9

On their way home, the couple passed by the artesian well where Bernardo, Joel and Wilson were loitering.
Appellant inquired from the three if they had seen Rogelio. Bernardo, allegedly, sarcastically replied "No, we
have not seen him. Why do you look for him here, you have your eyes, you have your feet." 10 When appellant
voiced out his observation that the three were drunk, he allegedly was struck by a bottle by Bernardo. Appellant
tried to block the blow but the bottle still hit his right eyelid. A fistfight erupted between Bernardo and
appellant, causing the bottle that Bernardo was holding to fall. Meanwhile, Joel and Wilson stationed
themselves on different sides of the appellant. It was here that Anabel allegedly saw Wilson drawing a knife.
She shouted a warning to her husband. Having issued her warning, Wilson boxed Anabel in the mouth and
approached appellant. Appellant quickly grabbed a piece of bamboo and waited for Wilson to approach him.
When Wilson was near enough, appellant grabbed hold of Wilsons arm and grappled with him for possession
of the knife. While this was going on, Bernardo joined the melee and proceeded to repeatedly punch appellant.
Appellant made a side-move causing Bernardo to be hit by the knife held by Wilson in the stomach. Still
grappling for possession of the knife with Wilson, Francisco Molina, Rogelios father, arrived and tried to
pacify the combatants. Appellant hit Francisco on the cheek. Weak from the blows he had received, appellant
fell to the ground. Anabel had to help him up so that they could go home. Bernardo followed and shouted: "I
will kill you, I will make sure that I will have my revenge."11

On cross examination, appellant stated that after Bernardo was hit with the knife, there was a continued
grappling for the knife. Finally, appellant was able to throw Wilson to the ground. He said that the knife did not
fall to the ground but was held by Wilson. Unfortunately, when Wilson was thrown to the ground he fell on the
knife he was still holding.12

The RTC, after observing inconsistencies in the testimonies of the appellant and his wife, found appellant guilty
beyond reasonable doubt of the crime of murder and declared:

Undoubtedly, the prosecution was able to prove clearly and convincingly that appellant killed Wilson not in self
defense. The sudden attack on Wilson by appellant without the former having an inkling of the evil act of
appellant and opportunity to defend himself constitute the qualifying aggravating circumstance of treachery.

xxxx

WHEREFORE, premises considered, [appellant] MARCIAL MALICDEM his guilt having been proved beyond
reasonable doubt of the felony of MURDER, is hereby convicted of the said felony and, there being no other
aggravating nor mitigating circumstances, is sentenced to suffer the penalty of RECLUSION PERPETUA. In
addition, he is ordered to pay P38,800 for actual damages, P50,000 for the death of Wilson Molina and another
P50,000 as moral damages to the heirs of the victim.13

Appellant filed his notice of appeal on September 15, 2006. The same was given due course.

The Court of Appeals affirmed with modification the July 31, 2006 decision of the RTC and disposed of the
appeal in the following manner:

WHEREFORE, premises considered, the Decision of the Regional Trial Court of Dagupan City, Branch 42,
promulgated on August 31, 2006, in Criminal Case No. 2002-0561-D finding appellant guilty beyond
reasonable doubt of the crime of murder, and sentencing him to suffer the penalty of reclusion perpetua is
hereby AFFIRMED with MODIFICATION in that aside from the damages awarded by the trial court, appellant
is also directed to pay exemplary damages in the amount of P25,000.14

Petitioners confinement was confirmed by the Bureau of Corrections on December 15, 2008.15

Hence, this appeal.16 Both the appellee17 and appellant18 waived the filing of supplemental briefs and adopted the
briefs they filed before the Court of Appeals.

Appellant made the following assignment of errors in his appeal:

ASSIGNMENT OF ERRORS

THE TRIAL COURT GRAVELY ERRED IN ITS INTERPRETATION OF FACTS.

II
 THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE APPARENT INCREDIBLE
TESTIMONIES OF THE PROSECUTION WITNESSES.

III

THE TRIAL COURT GRAVELY ERRED IN FINDING THAT THE GUILT OF THE APPELLANT
FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.19

Appellant posits that the Court of Appeals misinterpreted the facts and circumstances of the case. He argues that
minor inconsistencies and contradictions particularly in his and Anabels testimonies did not affect their
credibility as witnesses. He avers that the prosecutions version of the events was highly incredible since it was
testified to that there was no grudge between the appellant and victim prior to the incident.

We affirm the April 21, 2008 Decision of the Court of Appeals with modification respecting the award of
damages.

Time and again, this Court has stated that, in the absence of any clear showing that the trial court overlooked or
misconstrued cogent facts and circumstances which would alter a conviction, it generally defers to the trial
courts evaluation of the credibility of witnesses especially if such findings are affirmed by the Court of
Appeals.20 This must be so since the trial courts are in a better position to decide the question of credibility,
having heard the witnesses themselves and having observed firsthand their deportment and manner of testifying
under grueling examination.21

In People v. Clores,22 this Court had occasion to state that:

When it comes to the matter of credibility of a witness, settled are the guiding rules, some of which are that (1)
the appellate court will not disturb the factual findings of the lower court, unless there is a showing that it had
overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that would have
affected the result of the case, which showing is absent herein; (2) the findings of the trial court pertaining to the
credibility of a witness is entitled to great respect since it had the opportunity to examine his demeanor as he
testified on the witness stand, and, therefore, can discern if such witness is telling the truth or not; and (3) a
witness who testifies in a categorical, straightforward, spontaneous and frank manner and remains consistent on
cross-examination is a credible witness. (Citations omitted.)

Given the factual circumstances of the present case, we see no need to depart from the foregoing rules.
Appellant failed to present proof of any showing that the trial court overlooked, misconstrued or misapplied
some fact or circumstance of weight and substance that would have affected the result of the case. Prosecution
witnesses positively identified appellant to have stabbed the victim.

We agree that the death of Wilson at the hands of appellant was not occasioned by self-defense. For this Court
to consider self-defense as a justifying circumstance, appellant has to prove the following essential elements: (1)
unlawful aggression on the part of the victim; (2) reasonable necessity of the means employed to prevent or
repel such aggression; and (3) lack of sufficient provocation on the part of the person resorting to self-
defense.23 The Court has repeatedly stated that a person who invokes self-defense has the burden to prove all the
aforesaid elements. The Court also considers unlawful aggression on the part of the victim as the most
important of these elements. Thus, unlawful aggression must be proved first in order for self-defense to be
successfully pleaded, whether complete or incomplete.24

As stated in People v. Fontanilla25:

Unlawful aggression is of two kinds: (a) actual or material unlawful aggression; and (b) imminent unlawful
aggression. Actual or material unlawful aggression means an attack with physical force or with a weapon, an
offensive act that positively determines the intent of the aggressor to cause the injury. Imminent unlawful
aggression means an attack that is impending or at the point of happening; it must not consist in a mere
threatening attitude, nor must it be merely imaginary, but must be offensive and positively strong (like aiming a
revolver at another with intent to shoot or opening a knife and making a motion as if to attack). Imminent
unlawful aggression must not be a mere threatening attitude of the victim, such as pressing his right hand to his
hip where a revolver was holstered, accompanied by an angry countenance, or like aiming to throw a pot.

x x x It is basic that once an accused in a prosecution for murder or homicide admitted his infliction of the fatal
injuries on the deceased, he assumed the burden to prove by clear, satisfactory and convincing evidence the
justifying circumstance that would avoid his criminal liability x x x.

Based on the summary of facts by the RTC as affirmed by the Court of Appeals, the defense failed to discharge
its burden to prove unlawful aggression on the part of Wilson by sufficient and satisfactory proof. The records
were bereft of any indication that the attack by Wilson was not a mere threat or just imaginary. Bernardo, Joel
and Wilson were just in the act of leaving when appellant suddenly plunged a knife to Wilsons chest.

Anent the finding of treachery by the RTC, we agree that appellants act of suddenly stabbing Wilson as he was
about to leave constituted the qualifying circumstance of treachery. As we previously ruled, treachery is present
when the offender commits any of the crimes against persons, employing means, methods, or forms in the
execution, which tend directly and specially to insure its execution, without risk to the offender arising from the
defense which the offended party might make. 26 Here, appellant caught Wilson by surprise when he suddenly
embraced him and proceeded immediately to plunge a knife to his chest. The swift turn of events did not allow
Wilson to defend himself, in effect, assuring appellant that he complete the crime without risk to his own
person.

Moreover, we agree with the Court of Appeals that the claim of appellant that accident was the cause of the
death of the victim, cannot be taken into consideration in lieu of self-defense. As we stated in Toledo v.
People27:

The petitioner is proscribed from changing in this Court, his theory of defense which he adopted in the trial
court and foisted in the CA by claiming that he stabbed and killed the victim in complete self-defense. The
petitioner relied on Article 12, paragraph 4 of the Revised Penal Code in the trial and appellate courts, but
adopted in this Court two divergent theories (1) that he killed the victim to defend himself against his
unlawful aggression; hence, is justified under Article 11, paragraph 1 of the Revised Penal Code; (2) that his
bolo accidentally hit the victim and is, thus, exempt from criminal liability under Article 12, paragraph 4 of the
Revised Penal Code.

It is an aberration for the petitioner to invoke the two defenses at the same time because the said defenses are
intrinsically antithetical. There is no such defense as accidental self-defense in the realm of criminal law.

Self-defense under Article 11, paragraph 1 of the Revised Penal Code necessarily implies a deliberate and
positive overt act of the accused to prevent or repel an unlawful aggression of another with the use of
reasonable means. The accused has freedom of action. He is aware of the consequences of his deliberate acts.
The defense is based on necessity which is the supreme and irresistible master of men of all human affairs, and
of the law. From necessity, and limited by it, proceeds the right of self-defense. The right begins when necessity
does, and ends where it ends. Although the accused, in fact, injures or kills the victim, however, his act is in
accordance with law so much so that the accused is deemed not to have transgressed the law and is free from
both criminal and civil liabilities. On the other hand, the basis of exempting circumstances under Article 12 of
the Revised Penal Code is the complete absence of intelligence, freedom of action, or intent, or the absence of
negligence on the part of the accused. The basis of the exemption in Article 12, paragraph 4 of the Revised
Penal Code is lack of negligence and intent. The accused does not commit either an intentional or culpable
felony. The accused commits a crime but there is no criminal liability because of the complete absence of any of
the conditions which constitute free will or voluntariness of the act. An accident is a fortuitous circumstance,
event or happening; an event happening wholly or partly through human agency, an event which under the
circumstances is unusual or unexpected by the person to whom it happens.

Self-defense, under Article 11, paragraph 1, and accident, under Article 12, paragraph 4 of the Revised Penal
Code, are affirmative defenses which the accused is burdened to prove, with clear and convincing evidence.
Such affirmative defenses involve questions of facts adduced to the trial and appellate courts for resolution. By
admitting killing the victim in self-defense or by accident without fault or without intention of causing it, the
burden is shifted to the accused to prove such affirmative defenses. He should rely on the strength of his own
evidence and not on the weakness of that of the prosecution. If the accused fails to prove his affirmative
defense, he can no longer be acquitted.

xxxx

x x x With the failure of the petitioner to prove self-defense, the inescapable conclusion is that he is guilty of
homicide as found by the trial court and the CA. He cannot even invoke Article 12, paragraph 4 of the Revised
Penal Code. (Citations omitted and emphases supplied.)

Hence, we sustain the findings of the trial court and the Court of Appeals of the qualifying circumstance of
treachery attended the commission of the crime.

Article 248 of the Revised Penal Code, as amended by Republic Act No. 7659, provides for the penalty of
reclusion perpetua to death for the crime of murder.1wphi1 There being no aggravating or mitigating
circumstance, the RTC, as affirmed by the Court of Appeals, properly imposed the penalty of reclusion
perpetua, pursuant to Article 63, paragraph 2, of the Revised Penal Code.28

However, to conform to existing jurisprudence the Court must modify the amount of indemnity for death and
exemplary damages awarded by the courts a quo.

Anent the award of damages, when death occurs due to a crime, the following may be recovered: (1) civil
indemnity ex delicto for the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4)
exemplary damages; (5) attorneys fees and expenses of litigation; and (6) interest, in proper cases.29

The heirs of the victim was able to prove before the trial court, actual damages in the amount of P38,300.00.
Civil indemnity in the amount of P75,000.00 is mandatory and is granted without need of evidence other than
the commission of the crime. 30 Moral damages in the sum of P50,000.00 should be awarded despite the absence
of proof of mental and emotional suffering of the victims heirs. 31 As borne out by human nature and
experience, a violent death invariably and necessarily brings about emotional pain and anguish on the part of the
victims family.32

With respect to the award of exemplary damages, we agree with the Court of Appeals that the victims heirs are
entitled to it. We have previously stated:

Unlike the criminal liability which is basically a State concern, the award of damages, however, is likewise, if
not primarily, intended for the offended party who suffers thereby. It would make little sense for an award of
exemplary damages to be due the private offended party when the aggravating circumstance is ordinary but to
be withheld when it is qualifying. Withal, the ordinary or qualifying nature of an aggravating circumstance is a
distinction that should only be of consequence to the criminal, rather than to the civil, liability of the offender.
In fine, relative to the civil aspect of the case, an aggravating circumstance, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary damages within the unbridled meaning of Article
2230 of the Civil Code.33
However, recent jurisprudence pegs the award of exemplary damages at P30,000.00.34

In addition, and in conformity with current policy, we also impose on all the monetary awards for damages
interest at the legal rate of 6% per annum from date of finality of this Decision until fully paid.35

WHEREFORE, the appeal is DISMISSED. The April 21, 2008 Decision of the Court of Appeals in CA-G.R.
CR.-H.C. No. 02522 is AFFIRMED. Appellant MARCIAL MALICDEM Y MOLINA is found GUILTY beyond
reasonable doubt of MURDER, and is sentenced to suffer the penalty of reclusion perpetua. Appellant is further
ordered to pay the heirs of Wilson S. Molina the amounts of P38,300.00 as actual damages, P75,000.00 as civil
indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages. All monetary awards for
damages shall earn interest at the legal rate of 6% per annum from date of finality of this Decision until fully
paid.

No pronouncement as to costs.

SO ORDERED.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice
Chairperson

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO<*

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice

C E R T I F I C AT I O N

Pursuant to Section 13, Article VI II of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice
 11. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-7037 March 15, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
JOSE LAUREL, ET AL., defendants-appellants.

O'Brien and DeWitt for appellants.

Attorney-General Villamor for appellee.

TORRES, J.:

This appeal was raised by the four above-named defendants, from the judgment of conviction, found on page
117 of the record, rendered by the Honorable Mariano Cui.

The facts in this case are as follows: On the night of December 26, 1909, while the girl Concepcion Lat was
walking along the street, on her way from the house of Exequiel Castillo, situated in the pueblo of Tanauan,
Province of Batangas, accompanied by several young people, she was approached by Jose Laurel who suddenly
kissed her and immediately thereafter ran off in the direction of his house, pursued by the girl's companions,
among whom was the master of the house above mentioned, Exequiel Castillo; but they did not overtake him.

On the second night after the occurrence just related, that is, on the 28th, while Exequiel Castillo and Jose
Laurel, together with Domingo Panganiban and several others of the defendants, were at an entertainment held
on an upper floor of the parochial building of the said pueblo and attended by many residents of the town, it is
alleged that the said Castillo and Laurel were invited by Panganiban, the former through his brother, Roque
Castillo, and the latter, directly, to come out into the yard, which they did, accompanied by Panganiban and the
other defendants referred to. After the exchange of a few words and explanations concerning the kiss given the
girl Lat on the night of the 26th of that month, a quarrel arose between the said Jose Laurel and Exequiel
Castillo, in which Domingo Panganiban, Vicente Garcia, and Conrado Laurel took part, and as a result of the
quarrel Exequiel Castillo was seriously wounded. He succeeded in reaching a drug store near by where he
received first aid treatment; Jose Laurel also received two slight wounds on the head.

Dr. Sixto Rojas, who began to render medical assistance to Exequiel Castillo early in the morning of the
following day, stated that his examination of the latter's injuries disclosed a wound in the left side of the chest,
on a level with the fourth rib, from 3 to 4 centimeters in depth, reaching into the lung; another wound in the
back of the left arm and in the conduit through which the ulnar nerve passes, from 10 to 11 centimeters in
length, penetrating to the bone and injuring the nerves and arteries of the said region, especially the ulnar nerve,
which was served; a contusion on the right temple, accompanied by ecchymosis and hemorrhage of the tissues
of the eye; and, finally, another contusion in the back of the abdomen near the left cavity, which by reaction
injured the stomach and the right cavity. According to the opinion of the physician above named, the wound in
the left side of the breast was serious on account of its having fully penetrated the lungs and caused the patient
to spit blood, as noticed the day after he was wounded, and there must have been a hemmorhage of the lung, an
important vital vascular organ; by reason of this hemorrhage or general infection the patient would have died,
had it not been for the timely medical aid rendered him. The wound on the back of the left arm was also of a
serious nature, as the ulnar nerve was cut, with the result that the title and ring fingers of the patient's left hand
have been rendered permanently useless. With respect to the contusion on the right temple, it could have been
serious, according to the kind of blows received, and the contusion on the back of the abdomen was diagnosed
as serious also, on account of its having caused an injury as a result of which the wounded man complained of
severe pains in the stomach and left spleen. The said physician stated that he had attended the patient fourteen
consecutive days; that the contusion on the abdomen was cured in four or five days, and that on the right temple
in ten or twelve days, although this latter injury was accompanied by a considerable ecchymosis which might
not disappear for about three months, the time required for the absorption of the coagulated blood; that the
stitches in the wound of the left arm were taken out after twelve days, and when witness ceased to attend the
patient, this wound was healing up and for its complete cure would require eight or more days' time; and that
the wound in the breast, for the reason that it had already healed internally and the danger of infection had
disappeared, was healing, although still more time would be required for its complete cure, the patient being
able to continue the treatment himself, which in fact he did.

In view of the strikingly contradictory evidence adduced by the prosecution and by the defense, and in order to
decide what were the true facts of the case we shall proceed to recite the testimony of the party who was
seriously wounded and of his witnesses, and afterwards, that of his alleged assailants and of their witnesses, in
order to determine the nature of the crime, the circumstances that concurred therein and, in turn, the
responsibility of the criminal or criminals.

Exequiel Castillo testified that while he, together with Primitivo Gonzalez, was in the hall of the parochial
building of Tanauan, attending an entertainment on the night of December 28, 1909, he was approached by his
brother, Roque Castillo, who told him, on the part of Domingo Panganiban, that Jose Laurel desired to speak
with him and was awaiting him on the ground floor of the said building, to give him an explanation with regard
to his (Laurel's) having kissed Concepcion Lat on the night of the 26th in the street and in the presence of the
witness and other young people; that the witness, Exequiel Castillo, therefore, left the parochial building,
accompanied by his brother Roque and Primitivo Gonzalez, and met Sofronio Velasco, Gaudencio Garcia, and
Alfonso Torres, at the street door; that after he had waited there for half an hour, Jose laurel, Conrado Laurel,
Vicente Garcia, Jose Garcia, and Domingo Panganiban, likewise came down out of the building and Jose Laurel
approached him and immediately took him aside, away from the door of the building and the others; that Laurel
then said to him that, before making any explanations relative to the said offense against the girl Concepcion
Lat, he would ask him whether it was true that he (the witness, Castillo) had in his possession some letters
addressed by Laurel to the said girl, to which the witness replied that as a gentleman he was not obliged to
answer the question; that thereupon Jose Laurel suddenly struck him a blow in the left side of the breast with a
knife, whereupon the witness, feeling that he was wounded, struck in turn with the cane he was carrying at his
assailant, who dodged and immediately started to run; thereupon witness received another knife thrust in the left
arm followed by a blow in the left side from a fist and witness, upon turning, saw Vicente Garcia and Domingo
Panganiban in the act of again assaulting him; just then he was struck a blow with a cane on his right temple
and, on turning, saw behind him Conrado Laurel carrying a stick, and just at the moment Primitivo Gonzalez
and several policemen approached him calling of peace; his assailants then left him and witness went to the
neighboring drug store where he received first aid treatment. Witness further testified that he had been courting
the girl Concepcion Lat for a month; that, because his sweetheart had been kissed by Jose Laurel, he felt a little
resentment against the latter, and that since then he had no opportunity to speak with his assailant until the said
night of the attack.

Roque Castillo, a witness for the prosecution, testified that, at the request of Domingo Panganiban, he had
suggested to his brother, Exequiel Castillo, that the latter should go down to the door of the ground floor of the
parochial building, where Jose Laurel was waiting for him, so that the latter might make explanations to him
with regard to what had taken place on the night prior to the 26th of December; that Exequiel, who was in the
hall beside Primitivo Gonzalez, immediately upon receiving the notice sent him in Laurel's name, got up and
went down with Gonzalez and the witness, though the latter remained at the foot of the stairs in conversation
with Virginio de Villa, whom he found there; that, after a little while, witness saw Jose Laurel, Jose Garcia,
Domingo Panganiban, Vicente Garcia, and Conrado Laurel come down from the said building, and, on
observing something bulging from the back of the latter's waist he asked him what made that bulge, to which
Laurel replied that it meant "peace;" witness thereupon said to him that if he really desired "peace," as witness
also did, he might deliver to the latter the revolver he was carrying, and to prove that he would not make bad
use of the weapon, Laurel might take the cartridges out and deliver the revolver to witness. This he did, the
witness received the revolver without the cartridges, and his fears thus allayed, the witness returned to the upper
floor to the entertainment; but that, at the end of about half an hour, he heard a hubbub among the people who
said that there was a quarrel, and witness, suspecting that his brother Exequiel had met with some treachery, ran
down out of the house; on reaching the ground floor he met Primitivo Gonzalez, who had blood stains on his
arms; that Gonzalez then informed him that Exequiel was badly wounded; that he found his said brother in
Arsenio Gonzalez' drug store; and that his brother was no longer able to speak but made known that he wanted
to be shriven. Witness added that on that same night he delivered the revolver to his father, Sixto Castillo, who
corroborated this statement.

The other witness, Primitivo Gonzalez, corroborated the testimony given by the preceding witness, Roque
Castillo, and testified that, while he was that night attending the entertainment at the parochial building of
Tanauan, in company with Exequiel Castillo, the latter received notice from his (Castillo's) brother, through
Domingo Panganiban, to the effect that Jose Laurel desired to speak with him concerning what occurred on the
night of December 26; that thereupon Exequiel, the latter's brother, Roque and the witness all went down out of
the house, though Roque stopped on the main stairway while witness and Exequiel went on until they came to
the main door of the ground floor where they met Alfonso Torres and Gaudencio Garcia; that, after a while, Jose
Laurel, Conrado Laurel, Vicente Garcia, Jose Garcia Aquino, and Domingo Panganiban came up; that when
Jose Laurel met Exequiel Castillo he caught the latter by the hand and the two separated themselves from the
rest and retired to a certain distance, although Vicente and Jose Garcia, Conrado Laurel, and Alfonso Torres
placed themselves the nearest to the first two, Jose Laurel and Exequiel Castillo; that at this juncture witness,
who was about 6 or 7 meters away from the two men last named, observed that Jose Laurel, who had his hand
in his pocket while he was talking with Exequiel, immediately drew out a handkerchief and therewith struck
Exequiel a blow on the breast; that the latter forthwith hit his assailant, Laurel, with a cane which he was
carrying; that Laurel, upon receiving a blow, stepped back, while Exequiel pursued him and continued to strike
him; that thereupon Vicente Garcia stabbed Exequiel, who had his back turned toward him and Conrado Laurel
struck the said Exequiel a blow on the head with a cane; that when witness approached the spot where the fight
was going on, several policemen appeared there and called out for peace; and that he did not notice what Jose
Garcia Aquino and Alfonso Torres did.

Lucio Villa, a policeman, testified that on the hearing the commotion, he went to the scene of it and met Jose
Laurel who was coming away, walking at an ordinary gait and carrying a bloody pocketknife in his hand; that
witness therefore arrested him, took the weapon from him and conducted him to the municipal building; and
that the sergeant and another policemen, the latter being the witness's companion, took charge of the other
disturbers.

The defendant, Jose Laurel, testified that early in the evening of the 28th of December he went to the parochial
building, in company with Diosdado Siansance and several young people, among them his cousin Baltazara
Rocamora, for the purpose of attending an entertainment which was to be held there; that, while sitting in the
front row of chairs, for there were as yet but few people, and while the director of the college was delivering a
discourse, he was approached by Domingo Panganiban who told him that Exequiel Castillo wished to speak
with him, to which witness replied that he should wait a while and Panganiban thereupon went away; that, a
short time afterwards, he was also approached by Alfredo Yatco who gave him a similar message, and soon
afterwards Felipe Almeda came up and told him that Exequiel Castillo was waiting for him on the ground floor
of the house; this being the third summons addressed to him, he arose and went down to ascertain what the said
Exequiel wanted; that, when he stepped outside of the street door, he saw several persons there, among them,
Exequiel Castillo; the latter, upon seeing witness, suggested that they separate from the rest and talk in a place a
short distance away; that thereupon Exequiel asked witness why he kissed his, Exequiel's sweetheart, and on
Laurel's replying that he had done so because she was very fickle and prodigal of her use of the word "yes" on
all occasions, Exequiel said to him that he ought not to act that way and immediately struck him a blow on the
head with a cane or club, which assault made witness dizzy and caused him to fall to the ground in a sitting
posture; that, as witness feared that his aggressor would continue to assault him, he took hold of the pocketknife
which he was carrying in his pocket and therewith defended himself; that he did not know whether he wounded
Exequiel with the said weapon, for, when witness arose, he noticed that he, the latter, had a wound in the right
parietal region and a contusion in the left; that witness was thereupon arrested by the policemen, Lucio Villa,
and was unable to state whether he dropped the pocketknife he carried or whether it was picked up by the said
officer; that it took more than a week to cure his injuries; that he had been courting the girl Concepcion Lat for a
year, but that in October, 1909, his courtship ended and Exequiel Castillo then began to court her; and that, as
witness believed that the said girl would not marry him, nor Exequiel, he kissed her in the street, on the night of
December 26, 1909, and immediately thereafter ran toward his house.

Baltazara Rocamora stated that, while she was with Jose Laurel on the night of December 28, 1909, attending
an entertainment in the parochial building of Tanauan, the latter was successively called by Domingo
Panganiban, Alfredo Yatco, and Felipe Almeda, the last named saying: "Go along, old fellow; you are friends
now." Casimiro Tapia testified that, on the morning following the alleged crime, he visited Jose Laurel in the
jail, and found him suffering from the bruises or contusions; that to cure them, he gave him one application of
tincture of arnica to apply to his injuries, which were not serious.

Benito Valencia also testified that, while the entertainment, he saw Domingo Panganiban approach Jose Laurel
and tell him that Exequiel Castillo was waiting for him downstairs to talk to him; that Laurel refused to go, as
he wished to be present at the entertainment, and that Panganiban then went away; that, soon afterwards,
witness also went down, intending to return home, and, when he had been on the ground floor of the parochial
building for fifteen minutes, he saw, among the many people who were there, Exequiel Castillo and Jose Laurel
who were talking apart from a group of persons among whom he recognized Roque Castillo, Primitivo
Gonzalez and Conrado Laurel; that soon after this, witness saw Exequiel Castillo strike Jose Laurel a blow with
a cane and the latter stagger and start to run, pursued by the former, the aggressor; that at this juncture, Conrado
Laurel approached Exequiel and, in turn, struck him from behind; and that the police presently intervened in the
fight, and witness left the place where it occurred.

The defendant Domingo Panganiban testified that, while he was at the entertainment that night, he noticed that
it threatened to rain, and therefore left the house to get his horse, which he had left tied to a post near the door;
that, on reaching the ground floor, the brothers Roque and Exequiel Castillo, asked him to do them the favor to
call Jose Laurel, because they wished to talk to the latter, witness noticing that the said brothers were then
provided with canes; that he called Jose Laurel, but the latter said that he did not wish to go down, because he
was listening to the discourse which was then being delivered, and witness therefore went down to report the
answer to the said brothers; that while he was at the door of the parochial building waiting for the drizzle to
cease, Jose Laurel and Felipe Almeda came up to where he was, and just then Exequiel Castillo approached the
former, Laurel, and they both drew aside, about 2 brazas away, to talk; that soon afterwards, witness saw
Exequiel Castillo deal Jose Laurel two blows in succession and the latter stagger and start to run, pursued by his
assailant; the latter was met by several persons who crowded about in an aimless manner, among whom witness
recognized Roque Castillo and Conrado Laurel; and that he did not see Primitivo Gonzalez nor Gaudencio
Garcia at the place where the fight occurred, although he remained where he was until a policeman was called.

Conrado Laurel, a cousin of Jose Laurel, testified that, on the night of December 28, 1909, he was in the
parochial building for the purpose of attending the entertainment; that he was then carrying a revolver, which
had neither cartridges nor firing pin, for the purpose of returning it to its owner, who was a Constabulary
telegraph operator on duty in the pueblo of Tanauan; that the latter, having been informed by a gunsmith that the
said revolver could not be fixed, requested witness, when they met each other in the cockpit the previous
afternoon, to return the weapon to him during the entertainment; that, on leaving the said building to retire to his
house and change his clothes, he met Roque Castillo, his cousin and confidential friend, on the ground floor of
the parochial building or convent and the latter, seeing that witness was carrying a revolver, insisted on
borrowing it, notwithstanding that witness told him that it was unserviceable; that, after he had changed his
clothes, he left his house to return to the parochial building, and near the main door of said building he found
Exequiel Castillo and Jose Laurel talking by themselves; that a few moment afterwards, he saw Exequiel strike
Jose two blows with a cane that nearly caused him to fall at full length on the ground, and that Jose immediately
got up and started to run, pursued by his assailant, Exequiel; that witness, on seeing this, gave the latter in turn a
blow on the head with a cane, to stop him from pursuing Jose, witness fearing that the pursuer, should he
overtake the pursued, would kill him; that, after witness struck Exequiel Castillo with the cane, the police
intervened and arrested them; and that, among those arrested, he saw Panganiban and Vicente Garcia, and, at the
place of the disturbance, Roque Castillo and Primitivo Gonzalez.

Vicente Garcia denied having taken part in the fight. He testified that he also was attending the entertainment
and, feeling warm, went down out of the parochial building; that, upon so doing, he saw Domingo Panganiban
and Jose Laurel, but was not present at the fight, and only observed, on leaving the building, that there was a
commotion; then he heard a policeman had arrested Jose Laurel.

Well-written briefs were filed in first instance, both by the prosecution and by the defense; but, notwithstanding
the large number of persons who must have been eyewitnesses to what occurred, it is certain that the
prosecution was only able to present the witness, Primitivo Gonzalez, a relative of Exequiel Castillo, to testify
as to how and by whom the assault was begun.

Each one of the combatants, Exequiel Castillo and Jose Laurel accused the other of having commenced the
assault. Castillo testified that Laurel, after the exchange of few words between them, suddenly and without
warning stabbed him with a knife, while Laurel swore that, after a short conversation Castillo struck him two
blows with a cane, on which account, in order to defend himself, he seized a pocketknife he carried in his
pocket. In view, therefore, of these manifest contradictions, and in order to determine the liability of the
defendant, Jose Laurel, who, it is proved, inflicted the serious wound on Exequiel Castillo, it is necessary to
decide which of the two was the assailant.

Taking for granted that Jose Laurel did actually kiss Concepcion Lat in the street and in the presence of
Exequiel Castillo, the girl's suitor, and of others who were accompanying her, the first query that naturally arises
in the examination of the evidence and the circumstances connected with the occurrence, is: Who provoked the
encounter between Laurel and Castillo, and the interview between the same, and who invited the other, on the
night of December 28, 1909, to come down from the parochial building of Tanauan, to the lower floor and
outside the entrance of the same? Even on this concrete point the evidence is contradictory, for, while the
witnesses of Exequiel Castillo swore that the latter was invited by Jose Laurel, those of the latter testified, in
turn, that Laurel was invited three consecutive times by three different messengers in the name and on the part
of the said Castillo.

In the presence of this marked contradiction, and being compelled to inquire into the truth of the matter, we are
forced to think that the person who would consider himself aggrieved at the kiss given the girl Concepcion Lat,
in the street and in the presence of several witnesses, would undoubtedly be Exequiel Castillo, the suitor of the
girl, and it would appear to be a reasonable conclusion that he himself, highly offended at the boldness of Jose
Laurel, was the person who wished to demand explanation of the offense.

Upon this premise, and having weighed and considered as a whole the testimony, circumstantial evidence, and
other merits of the present case, the conviction is acquired, by the force of probability, that the invitation, given
through the medium of several individuals, came from the man who was offended by the incident of the kiss,
and that it was the perpetrator of the offense who was invited to come down from the parochial building to the
ground floor thereof to make explanations regarding the insult to the girl Lat, the real suitor of whom was at the
time the said Exequiel Castillo. All this is not mere conjecture; it is logically derived from the above related
facts.

Both Jose and Exequiel were attending the entertainment that night in the upper story of the parochial building.
Exequiel was the first who went below, with his cousin, Primitivo Gonzalez, knowing the Laurel remained in
the hall above, and he it was who waited for nearly half an hour on the ground floor of the said building for the
said Jose Laurel to come down. The latter was notified three times, and successively, in the name and on the
part of Exequiel Castillo, first by Domingo Panganiban, then by Alfredo Yatco and finally by Felipe Almeda--
three summonses which were necessary before Jose Laurel could be induced, after the lapse of nearly half an
hour, to come down. Meanwhile, for that space of time, Exequiel Castillo was awaiting him, undoubtedly for
the purpose of demanding explanations concerning the offensive act committed against his sweetheart. The
natural course and the rigorous logic of the facts can not be arbitrarily be rejected, unless it be shown that other
entirely anomalous facts occurred.

If, in the natural order of things, the person who was deeply offended by the insult was the one who believed he
had a right to demand explanations of the perpetrator of that insult, it is quite probable that the aggrieved party
was the one who, through the instrumentality of several persons, invited the insulter to come down from the
upper story of the parochial building, where he was, and make the explanations which he believed he had a right
to exact; and if this be so, Exequiel Castillo, seriously affected and offended by the insult to his sweetheart,
Concepcion Lat, must be held to be the one who brought about the encounter gave the invitation and provoked
the occurrence, as shown by his conduct in immediately going down to the entrance door of the said building
and in resignedly waiting, for half an hour, for Jose Laurel to come down.

Moreover, if the latter had provoked the encounter or interview had on the ground floor of the building, it is not
understood why he delayed in going down, nor why it became necessary to call him three times, in such manner
that Exequiel Castillo had to wait for him below for half an hour, when it is natural and logical to suppose that
the provoking party or the one interested in receiving explanations would be precisely the one who would have
hastened to be in waiting at the place of the appointment; he would not have been slow or indisposed to go
down, as was the case with Jose Laurel.

If, as is true, the latter was the one who insulted the girl Concepcion Lat an insult which must deeply have
affected the mind of Exequiel Castillo, the girl's suitor at the time it is not possible to conceive, as claimed
by the prosecution, how and why it should be Jose Laurel who should seek explanations from Exequiel Castillo.
It was natural and much more likely that it should have been the latter who had an interest in demanding
explanations from the man who insulted his sweetheart. In view of the behavior of the men a few moments
before the occurrence, we are of the opinion that Castillo was the first to go down to the entrance door of the
parochial building, knowing that Jose Laurel was in the hall, and, notwithstanding the state of his mind, he had
the patience to wait for the said Laurel who, it appears, was very reluctant to go down and it was necessary to
call him three times before he finally did so, at the end of half an hour.

After considering these occurrences which took place before the crime, the query of course arises as to which of
the two was the first to assault the other, for each lays the blame upon his opponent for the commencement of
the assault. Exequiel Castillo testified that after he had replied to Jose Laurel that he, the witness, was not
obliged to say whether he had in his possession several letters addressed by laurel to the girl Concepcion Lat,
Laurel immediately stabbed him in the breast with a knife; while Jose Laurel swore that, upon his answering the
question put to him by Castillo as to why the witness had kissed his sweetheart, saying that it was because she
was very fickle and prodigal of the word "yes" on all occasions, Exequiel said to him in reply that he ought not
to act in that manner, and immediately struck him a couple of blows on the head with a club, wherefore, in order
to defend himself, he drew the knife he was carrying in his pocket.

Were the statements made by Exequiel Castillo satisfactorily proven at the trial, it is unquestionable that Jose
Laurel would be liable as the author of the punishable act under prosecution; but, in view of the antecedents
aforerelated, the conclusions reached from the evidence, and the other merits of the case, the conclusion is
certain that the assault was commenced by Exequiel Castillo, who struck Jose Laurel two blows with a cane,
slightly injuring him in two places on the head, and the assaulted man, in self-defense, wounded his assailant
with a pocketknife; therefore, Jose Laurel committed no crime and is exempt from all responsibility, as the
infliction of the wounds attended by the three requisites specified in paragraph 4, article 8 of the Penal Code.
From the evidence, then, produced at the trial, it is concluded that it was Exequiel Castillo who, through the
mediation of several others, invited Laurel to come down from the upper story of the parochial building, and
that it was he, therefore, who provoked the affray aforementioned, and, also, it was he who unlawfully assaulted
Jose Laurel, by striking the latter two blows with a cane inasmuch as it is not likely that after having received a
dangerous wound in the left breast, he would have been able to strike his alleged assailant two successive blows
and much less pursue him. It is very probable that he received the said wounds after he had assaulted Jose
Laurel with the cane, and Laurel, on his part, in defending himself from the assault, employed rational means by
using the knife that he carried in his pocket.

For all the foregoing reasons, Jose Laurel must be acquitted and held to be exempt from responsibility on the
ground of self-defense. The case falls within paragraph 4 of article 8 of the Penal Code, inasmuch as the
defensive act executed by him was attended by the three requisites of illegal aggression on the part of Exequiel
Castillo, there being a lack of sufficient provocation on the part of Laurel, who, as we have said, did not
provoke the occurrence complained of, nor did he direct that Exequiel Castillo be invited to come down from
the parochial building and arrange the interview in which Castillo alone was interested, and, finally, because
Laurel, in defending himself with a pocketknife against the assault made upon him with a cane, which may also
be a deadly weapon, employed reasonable means to prevent or repel the same.

Under the foregoing reasoning, the other accused, Conrado Laurel and Vicente Garcia, who likewise, were
convicted as principals of the crime under prosecution, are comprised within the provisions of paragraph 5 of
the said article 8 of the Penal Code, which are as follows:

He who acts in defense of the person or rights of his spouse, ascendants, descendants, or legitimate,
natural, or adopted brothers or sisters, or of his relatives by affinity in the same degrees and those by
consanguinity within the fourth civil degree, provided the first and second circumstances mentioned in
the foregoing number are attendant, and provided that in case the party attacked first gave provocation,
the defender took no part therein.

Conrado Laurel and Vicente Garcia, first cousins of Jose Laurel, as shown in the trial record to have been
proven without contradiction whatsoever, did not provoke the trouble, nor did they take any part in the
invitation extended to Jose Laurel in the name of and for Exequiel Castillo; in assisting in the fight between
Castillo and Laurel, they acted in defense of their cousin, Jose Laurel, when they saw that the latter was
assaulted, twice struck and even pursued by the assailant, Castillo; consequently Conrado Laurel and Vicente
Garcia have not transgressed the law and they are exempt from all responsibility, for all the requisites of
paragraph 4 of the aforecited article attended the acts performed by them, as there was illegal aggression on the
part of the wounded man, Exequiel Castillo, reasonable necessity of the means employed to prevent or repel the
said aggression on the part of the aforementioned Conrado Laurel and Vicente Garcia, who acted in defense of
their cousin, Jose Laurel, illegally assaulted by Exequiel Castillo, neither of the said codefendants having
provoked the alleged crime.

With regard to Domingo Panganiban, the only act of which he was accused by the wounded man, Exequiel
Castillo, was that he struck the latter a blow on the left side with his fist, while Castillo was pursuing Laurel.

Domingo Panganiban denied that he took part in the quarrel and stated that he kept at a distance from the
combatants, until he was arrested by a policeman. His testimony appears to be corroborated by that of Primitivo
Gonzalez, a witness for the prosecution and relative of Exequiel Castillo, for Gonzalez positively declared that
Panganiban was beside him during the occurrence of the fight and when the others surrounded the said Exequiel
Castillo; it is, therefore, neither probable nor possible that Panganiban engaged in the affray, and so he
contracted no responsibility whatever.

Exequiel Castillo's wounds were very serious, but, in view of the fact that conclusive proof was adduced at the
trial, of the attendance of the requisites prescribed in Nos. 4 and 5 of article 8 of the Penal Code, in favor of
those who inflicted the said wounds, it is proper to apply to this case the provision contained in the next to the
last paragraph of rule 51 of the provisional law for the application of the said code.

With respect to the classification of the crime we believe that there is no need for us to concern ourselves
therewith in this decision, in view of the findings of fact and of law made by the court below upon the question
of the liability of the defendants.

By reason, therefore, of all the foregoing, we are of opinion that, with a reversal of the judgment appealed from,
we should acquit, as we do hereby, the defendants Jose Laurel, Vicente Garcia, Conrado Laurel, and Domingo
Panganiban. They have committed no crime, and we exempt them from all responsibility. The costs of both
instances shall be de oficio, and the bond given in behalf of the defendants shall immediately be canceled.

Johnson, Carson, Moreland and Trent, JJ., concur.

 11. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28451 August 1, 1928

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
NARCISO CABUNGCAL, defendant-appellant.

Esteban del Rosario for appellant.

Attorney-General Jaranilla for appellee.

AVANCEA, C.J.:

The appellant, Narciso Cabungcal, was sentenced by the Court of First Instance of Tayabas for the crime of
homicide to fourteen years, eight months and one day reclusion temporal, with the accessories of the law, to
indemnify the heirs of the deceased in the sum of P500 and to pay the costs of the action.

On March 21, 1926 the appellant invited several persons to a picnic in a fishery of his property in the barrio of
Misua, municipality of Infanta, Province of Tayabas. They spent the day at said fishery and in the afternoon
returned in two boats, one steered by the appellant and the other by an old woman named Anastasia Penaojas.
Nine persons were in the boat steered by the appellant, the great majority of whom were women and among
them the appellant's wife and son and a nursing child, son of a married couple who had also gone in this boat.
The deceased Juan Loquenario was another passenger in this boat. Upon reaching a place of great depth the
deceased rocked the boat which started it to take water, and the appellant, fearing the boat might capsize, asked
the deceased not to do it. As the deceased paid no attention to this warning and continued rocking the boat, the
appellant struck him on the forehead with an oar. The deceased fell into the water and was submerged, but a
little while after appeared on the surface having grasped the side of the boat, saying that he was going to capzise
it and started to move it with this end in view, seeing which the women began to cry, whereupon the appellant
struck him on the neck with the same oar, which submerged the deceased again. With the movement that the
appellant made in giving him the second blow, the boat upset and then the appellant proceeded to save his
passengers. In the meantime the aged Anastasia Penaojas, who steered the other boat, and who at that time was
about 200 or 300 meters away, having heard the cries of the wrecked persons, quickened its speed, repaired to
and arrived in time to pick up the passengers who are clinging to the side of the capsized boat, taking them later
to the river bank. The appellant, after having thus saved his passengers, proceeded to search for the deceased but
was unable to find him and his body was recovered later.

The Attorney-General is of the opinion that the mitigating circumstances described in the first, third, fourth and
seventh paragraphs of article 9 of the Penal Code are present without any aggravating circumstance, and the
penalty to be imposed on the appellant should be one or two degrees less than that prescribed by the law.

In view of the facts stated, we are of the opinion that the appellant is completely exempt from all criminal
liability.

Due to the conditions of the river at the point where the deceased started to rock the boat, if it had capsized the
passengers would have run the risk of losing their lives, the majority of whom were women, especially the
nursing child. The conduct of the deceased in rocking the boat until the point of it having taken water and his
insistence on this action, in spite of the appellant's warning, gave rise to the belief on the part of the plaintiff that
it would capsize if he did not separate the deceased from the boat in such a manner as to give him no time to
accomplish his purpose. It was necessary to disable him momentarily. For this purpose the blow given him by
the appellant on the forehead with an oar was the least that could reasonably have been done. And this
consideration militates with greater weight with respect to the second blow given in his neck with the same oar,
because, then the danger was greater that the boat might upset, especially as the deceased had expressed his
intention to upset it.

In view of all the circumstances of the case, in doing what the appellant did was in lawful defense of the lives of
the passengers of the boat, two of whom were his wife and child. The recourse of taking the boat to the shore
was not adequate in those circumstances, because that would require sometime, whereas the deceased might in
an instant cause the boat to capsize without giving time to arrive at the shore.

The appellant having acted in defense of his wife and child and the other passengers in the boat and the means
employed having been reasonably necessary in this defense, while it was at the cost of the life of the deceased,
he is completely exempt from criminal liability.

Reversing the judgment appealed from, the appellant is acquitted, with the costs de oficio. So ordered.

Johnson, Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
 11. FIRST DIVISION

[G.R. No. L-3956. January 10, 1908. ]

THE UNITED STATES, Plaintiff-Appellee, v. EMILIO CARRERO, Defendant-Appellant.

W. H. Lawrence, for Appellant.

Attorney-General Araneta, for Appellee.

SYLLABUS

1. HOMICIDE; SELF-DEFENSE. Unless preceded by an unlawful aggression, which is a main and essential
justification for self-defense, the plea of exemption from criminal liability can not be considered under the law
because the concurrence of the other two requisites expressly stated in article 8, No. 4, of the Penal Code
depend upon the aggression.

2. ID.; ID. When an aggression is in retaliation for an insult, injury, or threat it can not be considered as a
defense but as a punishment inflicted on the author of the provocation, and in such a case the most that courts
could do would be to consider the same as an extenuating circumstance, but never as a cause of complete
exemption from liability.

3. ID.; ID. A simple threat, though made with a weapon, or in the belief of an immediate aggression, is not
sufficient to determine the exemption of self-defense; it is indispensable that the intent of the aggressor be
ostensibly revealed by his hostile attitude and other external acts constituting a real, material, unlawful
aggression.

4. ID.; MITIGATING CIRCUMSTANCES; PENALTY. When in the commission of the crime of homicide
two mitigating circumstances have occurred which, together with the privileged circumstance stated in
paragraph 2 of article 9 of the Penal Code, deserve special consideration, no aggravating circumstance being
present, the penalty to be imposed is the lowest one of the third degree in the general scale prision
correccional in accordance with the provisions of article 85, paragraph 2, and article 81, rule 5, of said code.

DECISION

TORRES, J. :

On the afternoon of the 24th of November, 1906, several laborers working for the street-railway company, being
assembled in the district of Santa Ana, city of Manila, for the purpose of receiving their wages, were directed to
remain in single file and then successively approach a s mall house, where the paymaster had his office, in order
to be regularly paid. The accused, as foreman in the service of the company, was in charge of the preservation of
order and for such purpose he provided himself with a pick or spade handle, one end of which he daubed with
mud and threatened to push against the clothing of the laborers if they left the line or created trouble. Benedicto
Dio Pito left his place and forced his way into the file; the accused ordered him out, but still persisted, and the
accused then gave him a blow with the stick on the right side of the head, above the ear, in consequence of
which the deceased, Benedicto Dio Pito, fell to the ground holding his head with his hands; thereupon the
accused and another laborer rendered him prompt assistance and took him to the interior of a warehouse close
by; the injured man shortly afterwards asked for water, which, however, he was unable to drink, and became
unconscious, and upon being taken to St. Pauls Hospital died there a few hours later.

In consequence of the foregoing, an information was filed with the Court of First Instance charging Emilio
Carrero with the crime of homicide, and after proceedings in prosecution, the court entered judgment on the 4th
of December, 1906, sentencing the accused, as guilty of the crime of homicide to the penalty of six years and
one day of presidio mayor.

The fact that the deceased received a heavy blow with a stick, on the right side of the head, above the ear, and
that in consequence thereof he died shortly after, was fully proven in the trial, and constitutes the crime of
homicide as defined in article 404 of the Penal Code; in the commission of the above crime none of the
characteristics of the crime of murder, as described in article 403 of said code, were presents.

The accused pleaded not guilty, although he confessed to having struck the deceased on the right side of his
head with a pick handle, one of the working tools; it is therefore unquestionable that he is the author of the
violent death of Benedicto Dio Pito.

The accused, however, alleges that when he struck the blow he merely acted in self-defense in view of the
attitude of the deceased, who, after insulting him, thrust his hand into his pocket as if for the purpose of drawing
a dagger or a pocketknife and that in order to defend himself, because he believed that the deceased, owing to
his attitude, was about to attack him, he struck him the blow with the stick he had provided himself with, in
consequence of which the deceased fell to the ground, then arose at once, vomited, and then sat down; that he
and two other men then assisted the deceased and conducted him to the interior of a warehouse, where he
became unconscious, and later on he died in St. Pauls Hospital, whereto he was removed.

The statement of facts as made by the accused, by his counsel, and witnesses is lacking in truth; it is rather
exaggerated and is not supported by the evidence adduced at the trial. But even taking the same to be true, it is
unquestionable that there was some insult or provocation on the part of the unfortunate Benedicto Dio Pito, but
no attack or aggression was made by him upon the accused to justify the violent assault by the latter with a
stick, for it has not been shown that the deceased carried in his pocket or elsewhere any weapon or deadly
instrument, so that there was not even an actual threat or imminent peril of an attack upon the accused.

Unlawful aggression is the main and most essential element to support the theory of self-defense and the
complete or incomplete exemption from criminal liability; without such primal requisite it is not possible to
maintain that a person acted in self-defense within the terms under which unlawful aggression is subordinate to
the other two conditions named in article 8, No. 4, of the Penal Code. When an act of aggression is in response
to an insult, affront, or threat, it can not be considered as a defense but as the punishment which the injured
party inflicts on the author of the provocation, and in such a case the court can at most consider it as a
mitigating circumstance, but never as a reason for exemption, except in violation of the provisions of the Penal
Code.

The theory that by the simple belief of a person that he would be attacked, a deadly blow may be inflicted on
the ground of self-defense, even though it be with a stick, is not authorized by the law nor is it a doctrine
established by the decisions of courts. In the judgment of the supreme court of Spain, dated October 31, 1889,
not only was the belief of the individual who was obliged to defend himself considered but also the hostile
attitude and other acts, which in the opinion of the court, were considered as real and obstensible acts of
aggression; and, in other decisions of October 30, 1884, March 19, 1885, and November 15, 1889, a uniform
doctrine was established to the effect that a threat even if made with a weapon, or the belief that a person was
about to be attacked, is not sufficient, but that it is necessary that the intent be ostensibly revealed by an act of
aggression or by some external acts showing the commencement of actual and material unlawful aggression. In
this case the attitude and behavior of the deceased at the time certainly did not constitute the unlawful
aggression which the law requires, and the insulting words addressed to the accused, no matter how
objectionable they may have been, could not constitute so important a requisite as the aggression defined in the
Penal Code.

It is not shown in the record of the case that the serious injury suffered by the deceased, and which caused his
death, was not due to the blow he received from the accused, but to the striking of the head of the deceased
against the ground when he was allowed to fall by the two men who removed him to the warehouse, as alleged
by the accused; apart from the fact that the floor of the warehouse is of pine wood, and not of stone, even
though the shock was received, one can not believe that it was so heavy as to produce cerebral hemorrhage, and
that death ensued in consequence thereof. Therefore, the lower court has rightly concluded that the death of the
deceased was due to the blow he received on the head, not to the shock of his fall, and this conclusion is
supported by the evidence which counsel for the accused has not rebutted nor contested in this instance.

In the commission of the homicide in question the circumstance of the accused being under 18 years of age
must be considered, according to No. 2 of article 9 of the Penal Code, which requires, in connection with
paragraph 2 of article 85 of said code, that the penalty next lower to the one imposed by article 404 should be
applied. The penalty of prision mayor should ordinarily be imposed on the accused, but taking into account the
mitigating circumstances 3 and 4 of said article 9, viz, that he never intended to cause so serious a harm as the
death of Benedicto Dio Pito, and owing to the fact that provocation on the part of the latter immediately
preceded the attack by the accused, and also considering that no aggravating circumstance is present, and, under
rule 5 of article 81 of the code, the appropriate penalty to be inflicted on the accused should be the next lower to
the above-mentioned penalty of prision mayor, that is, prision correccional in its medium degree. Therefore,

In view of the foregoing, it is our opinion that the judgment appealed from should be reversed and that Emilio
Carrero should be sentenced to the penalty of two years four months and one day of prision correccional, to
suffer the accessory penalties of article 61 of the code, to pay 1,000 to the heirs of the deceased, or, in case of
insolvency, to suffer subsidiary imprisonment not to exceed one-third of the principal penalty, and to pay the
costs of both instances, and it is so ordered.

Arellano, C.J., and Mapa, J., concur.

Separate Opinions

TRACEY, J., concurring:chanrob1es virtual 1aw library

Concurring fully in the majority opinion, I desire to add the observation that the laws of America and of Spain
appear to be in substantial accord as to the requisites of self defense in cases of homicide. The unqualified
doctrine that a man is justified in acting on the facts as they appear to him, whether his belief is well founded or
not, is by no means established in the United States. There must exist a reasonable ground for his belief.

". . . before one can justify the taking of life in self-defense he must show that there was reasonable grounds for
believing that he was in great peril, and that the killing was necessary for his escape from peril and that no other
safe means of escape was open to him. (People v. Johnson, 139 N. Y., 358.) See also People v. Kerigan, 147 N.
Y., 210, 215;) People v. Constantino, 153 N. Y., 24; People v. Kennedy, 159 N. Y., 346.

Even in cases cited to sustain the extreme claim of self-defense it is held that the person defending himself must
be "without fault or carelessness" (People v. Miles, 55 Cal., 209), and must have "reasonable ground for his
belief" (People v. Herbert, 61 Cal., 544), and that "threats alone never justify a homicide" (People v. Lynch, 101
Cal., 229). The California doctrine is fully stated in People v. Hecker (109 Cal., 451).

It may be noted, however, that this court has not been disposed to recognize the obligation of escaping or
retreating to avoid an attack, to the extent laid down in the American cases (U.S v. Mack, 8 Phil. Rep., 701; U.S
v. Grafton, 6 Phil. Rep., 55; U. S. v. Dimitillo, 7 Phil Rep., 475.)

The rule maintained by the Federal courts may be found in U.S v. Outerbridge (Fed. Case 15978) and U.S v.
Wiltberger. (Fed. Case 16738). In this latter case Mr. Justice Washington said (p. 729):jgc:chanrobles.com.ph

"The present case is one which defendants counsel have contended is justified by law justified, they say,
upon the ground of self-defense. As to this, the law is that a man may oppose force to force, in defense of his
person, his family, or property, against one who manifestly endeavors, by surprise or violence, to commit a
felony, as murder, robbery, or the like. In this definition of justifiable homicide, the following particulars are to
be attended to. The intent must be to commit a felony. If it be only to commit a trespass, as to beat the party, it
will not justify the killing of the aggressor. No words no gestures, however, insulting and irritating not
even an assault, will afford such justification; although it may be sufficient to reduce the offense from murder to
a manslaughter."cralaw virtua1aw library

The accused was not without fault. His mistaken appreciation of personal danger may have been due to his
youth and inexperience, but for that the law makes liberal allowance in adjusting the penalty.

JOHNSON and CARSON, JJ., dissenting:chanrob1es virtual 1aw library

We cannot agree with the findings of fact nor with the conclusions of the majority opinion.

After a careful study of the facts adduced during the trial of the cause, we have reached the conclusion that the
attorney for the appellant has correctly stated the facts, which statements we adopt as being true and correct.
These facts are as follows:chanrob1es virtual 1aw library

Appellant was tried and convicted by the Court of First Instance of Manila on a complaint for homicide,
charging him with having caused the death of one Benedicto Dio Pito by striking the latter with a hammer
handle, on the 24th day of November, 1906. The penalty imposed by the court was six years and one day of
presidio mayor.

It seems that on November 24, 1906, in the district of Santa Ana, of this city, the paymaster of J. G. White &
Co. was engaged in paying off some hundreds of laborers employed on the constructions of the Fort McKinley
electric tram line. The defendant, a boy of 16 years, was an employee of the company, and was engaged on that
day in assisting the general foreman to keep the workmen in single file, so that they might be paid in a regular
and orderly manner. During a temporary absence of the general foreman, the boy was left alone, and the
workmen seem to have taken advantage of the opportunity to make trouble. The deceased, Benedicto Dio Pito,
undertook to force his way into the line, and persisted in so doing, notwithstanding the repeated orders of the
defendant. Defendant carried a stick (Exhibit A), and this he had daubed with mud and used to keep the men in
place by threatening to put it against their clothing. It does not appear that he made such a threat to the man Dio
Pito, but the latter after being removed from the line for the third time, stepped toward defendant and said:
"Dont you hit me with that stick, you . . . . ." Several other men left the line and followed Dio Pito as he
advanced toward the defendant, and the crowd of workmen shouted "Hit the Spaniard," "Kill him," "Fight the
Spaniard," and the like. It seems that defendant had once seen a quarrel between two Filipinos, in which one
drew a knife and stabbed the other. He had seen a vicious assault on the paymaster by the same gang of
laborers, including Dio Pito, only two weeks before, when knives and bolos had been in evidence. "There had
been trouble in there before," as defendant says (p. 38 of the record), "and I was afraid of this man." As he
stepped forward, Dio Pito thrust his hand into his pocket, and this action together with the language and
demeanor of deceased, the shouts and conduct of the bystanders, and defendants previous experience and his
knowledge of the dangerous character of his assailants, led him to believe that deceased was about to draw a
knife and attack him. Defendant took a step back and struck with the stick which he carried and deceased fell to
the ground. The blow appeared at first to have had no serious effect, and defendant was foremost in rendering
aid, but after a short time Dio Pito became unconscious, and he died in the hospital on the same day, immediate
cause of death being cerebral hemorrhage.

We are of the opinion that under these facts defendant should have been discharged. The doctrine seems to be
well established both by the supreme court of Spain, as well as by the various courts of the United States, that
whenever a man undertakes self-defense he is justified in acting on the facts as they appear to him. If, without
fault or carelessness, he is misled concerning the facts and defends himself according to what he supposes the
facts to be, he is justifiable, though they are, in truth, otherwise and he really had no occasion for the extreme
measure taken by him. Actual danger is not necessary to justify the right of self-defense; a necessity, apparently
real, is real so far as the defendants conduct is regarded. Either is sufficient to protect the defendant. (People v.
Miles, 55 Cal. 209; People v. Herbert, 61 Cal. 544; Bishops Criminal Law, sec. 305; Viada, Vol. I, pp. 98, 136;
U. S. v. Dimitillo, 1 5 Off. Gaz., 201; U. S. v. Mack, 2 5 Off. Gaz., 792.)
11.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23734 April 27, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
TEODORO SABIO, defendant-appellant.

Antonio T. de Jesus for defendant and appellant.

Office of the Solicitor General for plaintiff and appellee.

BENGZON, J.P. J.:

At about six p.m. of April 12, 1963, Teodoro Sabio was squatting with a friend, Irving Jurilla, in the plaza of
Central Manapla, Manapla, Negros Occidental. Romeo Bacobo and two others Ruben Miosa and Leonardo
Garcia approached them. All of them were close and old friends.

Romeo Bacobo then asked Sabio where he spent the holy week. At the same time, he gave Sabio a "footkick
greeting", touching Sabio's foot with his own left foot. Sabio thereupon stood up and dealt Romeo Bacobo a fist
blow, inflicting upon him a lacerated wound, inch long, at the upper lid of the left eye. It took from 11 to 12
days to heal and prevented Romeo Bacobo from working during said period as employee of Victorias Milling
Co., Inc.

Sabio was thereafter prosecuted for less serious physical injuries. In the municipal court he was found guilty
and sentenced to imprisonment of 5 months and 10 days plus costs. In the Court of First Instance, however, to
which he appealed, he was found guilty but with the mitigating circumstance of provocation, so that the penalty
imposed was one (1) month and five (5) days of arresto mayor plus indemnity of P100 and costs.1wph1.t

Defendant appealed from this judgment to Us to raise as a pure question of law the sole issue of whether, under
the facts is determined below, a fist blow delivered in retaliation to a "foot-kick greeting" is an act of self-
defense and/or justifying circumstance entitling the accused to acquittal and relief from all liabilities, civil and
criminal.

A primordial requisite for self-defense is unlawful aggression (Art. 11, Rev. Penal Code). And for unlawful,
aggression to be present, there must be real danger to life or personal safety (People vs. Beatriz Yuman, 61 Phil.
786). For this reason, a mere push or a shove, not followed by other acts, has been held insufficient to constitute
unlawful aggression (People vs. Yuman, supra). A playful kick the lower court rejected defendant's claim
that it was a "vicious kick" at the foot my way of greeting between friends may be a practical joke, and may
even hurt; but it is not a serious or real attack on a person's safety. Appellant's submission that it amounts to
unlawful aggression cannot therefore be sustained. As rightly found by the Court of First Instance, such kick
was only a mere slight provocation.

Reference is made to a decision of the Supreme Court of Spain (prom. Jan. 20, 1904, 72 Jur. Crim. 123-125),
considering a slap on the face an unlawful aggression. No parity lies between said case and the present. Since
the face represents a person and his dignity, slapping, it is a serious personal attack. It is a physical assault
coupled with a willful disregard, nay, a defiance, of in individual's personality. It may therefore be frequently
regarded as placing in real danger a person's dignity, rights and safety. A friendly kick delivered on a person's
foot obviously falls short of such personal aggression.

Wherefore, the judgment appealed from is hereby affirmed in toto. Costs against appellant. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
 11. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-39630 November 13, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LEONCIO ROXAS, defendant-appellant.

Antonio Fuentecilla for appellant.

Office of the Solicitor-General Hilado for appellee.

BUTTE, J.:

This is an appeal from a judgment of the Court of First Instance of Mindoro, convicting the defendant-appellant
of the crime of homicide upon the following information:

That on or about the 22nd day of February, 1933, at about 9 o'clock in the evening, in the municipality
of Puerto Galera, Province of Mindoro, Philippine Islands, and within the jurisdiction of this court, the
said accused, armed with an automatic pocket-knife, did then and there willfully, unlawfully and
feloniously attack, assault and wound Felicisimo Garcia with said weapon inflicting upon the latter two
wounds in different parts of the body, to wit: one incised wound 18 1/2 centimeters long on the lower
portion of the right chest, cutting the 6th and 7th ribs and exposing the 5th rib and lung, and another
incised wound, superficial, 1 1/3 centimeters long to the left of the vertebral column; and a result
thereof, the aforesaid Felicisimo Garcia died instantaneously.

He was sentenced to twelve years and one day of reclusion temporal and required to indemnify the heirs of the
deceased in the sum of P1,000. The appellant makes the following assignments of error:

1. El Juzgado a quo erro al no estimar en el caso de autos la existencia de la circunstancia eximente de

legitima defensa a favor del acusado, y al condenarle a este a doce aos y un dia de reclusion
temporalcon las accesorias de la ley, al pago de las costas del juico y a indemnizar a los herederos del
occiso en la suma de P1,000 en vez de absolverle libremente.

2. Que en todo el Juzgado a quo erro al no imponer al acusado en la causa de autos la pena de prision
mayor, en lugar de la reclusion temporal impuesta.

We have carefully considered the excellent brief for the appellant filed by Antonio Fuentecilla who was
appointed as attorney de oficio on this appeal, in which a careful and thorough analysis of the evidence was
made in support of the first assignment of error. But we have come to the conclusion that the findings of fact
made by the court below are amply supported by the evidence. Even though the deceased was the aggressor, the
defendant himself admits that the aggressor was not armed. There being no rational necessity shown for the
means which the accused used to repel the attack of his aggressor, article 11 of the Revised Penal Code cannot
be invoked here to exempt the defendant from the responsibility.
Counsel for the appellant maintains that the accused was a minor below eighteen when the offense was
committed and asked that this be considered as an additional mitigating circumstance under the provisions of
article 13, paragraph 2, of the Revised Penal Code. Article 13, paragraph 2, of the Revised Penal Code is as
follows:

That the offender is under eighteen years of age or over seventy years. In the case of the minor, he shall
be proceeded against in accordance with the provisions of article 80.

Exhibit A, offered by the prosecution, states that the age of the accused at the time of the commission of the
offense was seventeen years and eight months. We accept this as the best evidence in the record as to the true
age of the accused. It is necessary, therefore, to reform the judgment of the court below and to enter one in
conformity with article 80 of the Revised Penal Code. We accept and affirm the findings of fact of the court
below as to the guilt of the defendant. We further find the presence of the following extenuating circumstances
and direct that they be applied when final sentenced may be pronounced, namely: First, the age of the accused
being under eighteen (article 13, paragraph 2); second, provocation on the part of the deceased (article 13,
paragraph 4); third, obfuscation (article 13, paragraph 6); fourth, voluntary surrender (article 13, paragraph 7).
That part of the judgment which sentences the defendant to twelve years and one day of reclusion temporal and
to indemnify the heirs of the deceased in the sum of P1,000 is hereby revoked and it is ordered that the
defendant-appellant be placed in the Philippine Training School for Boys at Welfareville in the custody of the
care of the Commissioner of Public Welfare until the said defendant shall have attained his majority, subject
however, to the provisions and conditions of said article 80 of the Revised Penal Code.

It is ordered that the case be remanded to the Court of First Instance of Mindoro for further proceedings in
accordance with this decision. Costs de oficio.lawphil.net

Street, Abad Santos, Vickers, and Imperial, JJ., concur.

 11. Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5272 March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.

Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused
himself, because from the very nature of these facts and from the circumstances surrounding the incident upon
which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the
defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence
touching those details of the incident as to which there can be said to be any doubt, the following statement of
the material facts disclose by the record may be taken to be substantially correct:

The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal
Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho.
"Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in
August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two
servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a
narrow porch running along the side of the building, by which communication was had with the other part of the
house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room
was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small
hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room there was but one small window, which, like the
door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the
room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was
suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice,
"Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open
by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the
porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his
feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by
the edge of the chair which had been placed against the door. In the darkness and confusion the defendant
thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a
burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by
the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his
pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual.
Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the
defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to
his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up
Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one
of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was
because of these repeated robberies he kept a knife under his pillow for his personal protection.

The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms
prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door
and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a
walk with his friends, Celestino Quiambao and Mariano Ibaez, servants employed at officers' quarters No. 28,
the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and
Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party
separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting
on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called
Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man.

The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the
impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite
defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the
boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by
forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe
that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died
from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple
homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the
minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but
insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right
of self-defense.

Article 8 of the Penal Code provides that

The following are not delinquent and are therefore exempt from criminal liability:

xxx xxx xxx

4 He who acts in defense of his person or rights, provided there are the following attendant
circumstances:

(1) Illegal aggression.

(2) Reasonable necessity of the means employed to prevent or repel it.

(3) Lack of sufficient provocation on the part of the person defending himself.

Under these provisions we think that there can be no doubt that defendant would be entitle to complete
exception from criminal liability for the death of the victim of his fatal blow, if the intruder who forced open the
door of his room had been in fact a dangerous thief or "ladron," as the defendant believed him to be. No one,
under such circumstances, would doubt the right of the defendant to resist and repel such an intrusion, and the
thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist, and his threat
that he would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness of the
night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings
defendant would have been wholly justified in using any available weapon to defend himself from such an
assault, and in striking promptly, without waiting for the thief to discover his whereabouts and deliver the first
blow.

But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither the defendant nor
his property nor any of the property under his charge was in real danger at the time when he struck the fatal
blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he
was repelling and resisting, and that there was no real "necessity" for the use of the knife to defend his person or
his property or the property under his charge.

The question then squarely presents it self, whether in this jurisdiction one can be held criminally responsible
who, by reason of a mistake as to the facts, does an act for which he would be exempt from criminal liability if
the facts were as he supposed them to be, but which would constitute the crime of homicide or assassination if
the actor had known the true state of the facts at the time when he committed the act. To this question we think
there can be but one answer, and we hold that under such circumstances there is no criminal liability, provided
always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.

In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a
particular intent which under the law is a necessary ingredient of the offense charged (e.g., in larcerny, animus
furendi; in murder, malice; in crimes intent) "cancels the presumption of intent," and works an acquittal; except
in those cases where the circumstances demand a conviction under the penal provisions touching criminal
negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a
crime or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be different
from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim.
Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth vs. Power, 7 Met., 596;
Yates vs. People, 32 N.Y., 509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)

The general proposition thus stated hardly admits of discussion, and the only question worthy of consideration
is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and
assassination as defined and penalized in the Penal Code. It has been said that since the definitions there given
of these as well as most other crimes and offense therein defined, do not specifically and expressly declare that
the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the
actor may be held criminally liable, the commission of the acts set out in the various definitions subjects the
actor to the penalties described therein, unless it appears that he is exempted from liability under one or other of
the express provisions of article 8 of the code, which treats of exemption. But while it is true that contrary to the
general rule of legislative enactment in the United States, the definitions of crimes and offenses as set out in the
Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient
of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that malice, or criminal
intent in some form, is an essential requisite of all crimes and offense therein defined, in the absence of express
provisions modifying the general rule, such as are those touching liability resulting from acts negligently or
imprudently committed, and acts done by one voluntarily committing a crime or misdemeanor, where the act
committed is different from that which he intended to commit. And it is to be observed that even these
exceptions are more apparent than real, for "There is little distinction, except in degree, between a will to do a
wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits
supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law, vol. 1, s. 313); and, again,
"There is so little difference between a disposition to do a great harm and a disposition to do harm that one of
them may very well be looked upon as the measure of the other. Since, therefore, the guilt of a crime consists in
the disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or
less in proportion to the harm which is done by the crime, the consequence is that the guilt of the crime follows
the same proportion; it is greater or less according as the crime in its own nature does greater or less harm"
(Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated, the thing done, having proceeded from a corrupt
mid, is to be viewed the same whether the corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by law.

Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall
appear.

An person voluntarily committing a crime or misdemeanor shall incur criminal liability, even though the
wrongful act committed be different from that which he had intended to commit.

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article,
say that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that without intention
(intention to do wrong or criminal intention) there can be no crime; and that the word "voluntary" implies and
includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code
of 1822, but omitted from the code of 1870, because, as Pacheco insists, their use in the former code was
redundant, being implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from
criminal responsibility when the act which was actually intended to be done was in itself a lawful one, and in
the absence of negligence or imprudence, nevertheless admits and recognizes in his discussion of the provisions
of this article of the code that in general without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as
we have shown above, the exceptions insisted upon by Viada are more apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

In fact, it is sufficient to remember the first article, which declared that where there is no intention there
is no crime . . . in order to affirm, without fear of mistake, that under our code there can be no crime if
there is no act, an act which must fall within the sphere of ethics if there is no moral injury. (Vol. 2, the
Criminal Law, folio 169.)

And to the same effect are various decisions of the supreme court of Spain, as, for example in its sentence of
May 31, 1882, in which it made use of the following language:

It is necessary that this act, in order to constitute a crime, involve all the malice which is supposed from
the operation of the will and an intent to cause the injury which may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever may be the civil
effects of the inscription of his three sons, made by the appellant in the civil registry and in the parochial
church, there can be no crime because of the lack of the necessary element or criminal intention, which
characterizes every action or ommission punished by law; nor is he guilty of criminal negligence."

And to the same effect in its sentence of December 30, 1896, it made use of the following language:
 . . . Considering that the moral element of the crime, that is, intent or malice or their absence in the
commission of an act defined and punished by law as criminal, is not a necessary question of fact
submitted to the exclusive judgment and decision of the trial court.

That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various
crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article
568, which are as follows:

He who shall execute through reckless negligence an act that, if done with malice, would constitute a
grave crime, shall be punished with the penalty of arresto mayor in its maximum degree, to prision
correccional in its minimum degrees if it shall constitute a less grave crime.

He who in violation of the regulations shall commit a crime through simple imprudence or negligence
shall incur the penalty of arresto mayor in its medium and maximum degrees.

In the application of these penalties the courts shall proceed according to their discretion, without being
subject to the rules prescribed in article 81.

The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or
less than those contained in the first paragraph thereof, in which case the courts shall apply the next one
thereto in the degree which they may consider proper.

The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent," and the
direct inference from its provisions is that the commission of the acts contemplated therein, in the absence of
malice (criminal intent), negligence, and imprudence, does not impose any criminal liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word
"willful" as used in English and American statute to designate a form of criminal intent. It has been said that
while the word "willful" sometimes means little more than intentionally or designedly, yet it is more frequently
understood to extent a little further and approximate the idea of the milder kind of legal malice; that is, it
signifies an evil intent without justifiable excuse. In one case it was said to mean, as employed in a statute in
contemplation, "wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing
lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad
purpose; in other words, corruptly." In English and the American statutes defining crimes "malice," "malicious,"
"maliciously," and "malice aforethought" are words indicating intent, more purely technical than "willful" or
willfully," but "the difference between them is not great;" the word "malice" not often being understood to
require general malevolence toward a particular individual, and signifying rather the intent from our legal
justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)

But even in the absence of express words in a statute, setting out a condition in the definition of a crime that it
be committed "voluntarily," willfully," "maliciously" "with malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that reasoning from general principles it will always be
found that with the rare exceptions hereinafter mentioned, to constitute a crime evil intent must combine with an
act. Mr. Bishop, who supports his position with numerous citations from the decided cases, thus forcely present
this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. In
controversies between private parties the quo animo with which a thing was done is sometimes
important, not always; but crime proceeds only from a criminal mind. So that

There can be no crime, large or small, without an evil mind. In other words, punishment is the sentence
of wickedness, without which it can not be. And neither in philosophical speculation nor in religious or
 mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind
was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of
an offense is the wrongful intent, without which it can not exists. We find this doctrine confirmed by

Legal maxims. The ancient wisdom of the law, equally with the modern, is distinct on this subject. It
consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea, "the act itself
does not make man guilty unless his intention were so;" Actus me incito factus non est meus actus, "an
act done by me against my will is not my act;" and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also

Moral science and moral sentiment teach the same thing. "By reference to the intention, we inculpate or
exculpate others or ourselves without any respect to the happiness or misery actually produced. Let the
result of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the
dame ground, we hold him innocent." The calm judgment of mankind keeps this doctrine among its
jewels. In times of excitement, when vengeance takes the place of justice, every guard around the
innocent is cast down. But with the return of reason comes the public voice that where the mind is pure,
he who differs in act from his neighbors does not offend. And

In the spontaneous judgment which springs from the nature given by God to man, no one deems another
to deserve punishment for what he did from an upright mind, destitute of every form of evil. And
whenever a person is made to suffer a punishment which the community deems not his due, so far from
its placing an evil mark upon him, it elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification of what has the appearance of wrong, with
the utmost confidence that the plea, if its truth is credited, will be accepted as good. Now these facts are
only the voice of nature uttering one of her immutable truths. It is, then, the doctrine of the law, superior
to all other doctrines, because first in nature from which the law itself proceeds, that no man is to be
punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract
justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law
excuses no man"), without which justice could not be administered in our tribunals; and compelled also by the
same doctrine of necessity, the courts have recognized the power of the legislature to forbid, in a limited class of
cases, the doing of certain acts, and to make their commission criminal without regard to the intent of the doer.
Without discussing these exceptional cases at length, it is sufficient here to say that the courts have always held
that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the
intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc., vol. 12,
p. 158, notes 76 and 77); and the rule that ignorance of the law excuses no man has been said not to be a real
departure from the law's fundamental principle that crime exists only where the mind is at fault, because "the
evil purpose need not be to break the law, and if suffices if it is simply to do the thing which the law in fact
forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no pressing necessity therefore, requiring mistake in
fact to be dealt with otherwise that in strict accord with the principles of abstract justice. On the contrary, the
maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed
offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in every crime, any such mistake of fact as shows the act
committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal
liability provided always there is no fault or negligence on his part; and as laid down by Baron Parke, "The guilt
of the accused must depend on the circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb.,
625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap., 387.) That is to
say, the question as to whether he honestly, in good faith, and without fault or negligence fell into the mistake is
to be determined by the circumstances as they appeared to him at the time when the mistake was made, and the
effect which the surrounding circumstances might reasonably be expected to have on his mind, in forming the
intent, criminal or other wise, upon which he acted.

If, in language not uncommon in the cases, one has reasonable cause to believe the existence of facts
which will justify a killing or, in terms more nicely in accord with the principles on which the rule is
founded, if without fault or carelessness he does believe them he is legally guiltless of the homicide;
though he mistook the facts, and so the life of an innocent person is unfortunately extinguished. In other
words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the
doctrine of reason and sufficiently sustained in adjudication, that notwithstanding some decisions
apparently adverse, whenever a man undertakes self-defense, he is justified in acting on the facts as they
appear to him. If, without fault or carelessness, he is misled concerning them, and defends himself
correctly according to what he thus supposes the facts to be the law will not punish him though they are
in truth otherwise, and he was really no occassion for the extreme measures. (Bishop's New Criminal
Law, sec. 305, and large array of cases there cited.)

The common illustration in the American and English textbooks of the application of this rule is the case where
a man, masked and disguised as a footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed by his friend under the mistaken
belief that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are
in imminent danger at the hands of the aggressor. No one will doubt that if the facts were such as the slayer
believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal
liability, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly
be guilty of the crime of homicide or assassination. Under such circumstances, proof of his innocent mistake of
the facts overcomes the presumption of malice or criminal intent, and (since malice or criminal intent is a
necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same
time the presumption established in article 1 of the code, that the "act punished by law" was committed
"voluntarily."

Parson, C.J., in the Massachusetts court, once said:

If the party killing had reasonable grounds for believing that the person slain had a felonious design
against him, and under that supposition killed him, although it should afterwards appear that there was
no such design, it will not be murder, but it will be either manslaughter or excusable homicide,
according to the degree of caution used and the probable grounds of such belief. (Charge to the grand
jury in Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an outstretched arms
and a pistol in his hand, and using violent menaces against his life as he advances. Having approached
near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the
instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder
only, and that the real design of B was only to terrify A. Will any reasonable man say that A is more
criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine
must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the
pistol is loaded a doctrine which would entirely take away the essential right of self-defense. And
when it is considered that the jury who try the cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's
Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here
set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of
his wife, without other light than reflected from the fire, and that the man with his back to the door was
attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one
or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and
took from his the stick with which he had undoubtedly been struck, and gave the unknown person a
blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the
unknown lying on the floor, and left the house. It turned out the unknown person was his father-in-law,
to whom he rendered assistance as soon as he learned his identity, and who died in about six days in
consequence of cerebral congestion resulting from the blow. The accused, who confessed the facts, had
always sustained pleasant relations with his father-in-law, whom he visited during his sickness,
demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility,
as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal
Code? The criminal branch of theAudiencia of Valladolid found that he was an illegal aggressor, without
sufficient provocation, and that there did not exists rational necessity for the employment of the force
used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of
imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the
supreme court, under the following sentence: "Considering, from the facts found by the sentence to have
been proven, that the accused was surprised from behind, at night, in his house beside his wife who was
nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they
might have executed their criminal intent, because of the there was no other than fire light in the room,
and considering that in such a situation and when the acts executed demonstrated that they might
endanger his existence, and possibly that of his wife and child, more especially because his assailant was
unknown, he should have defended himself, and in doing so with the same stick with which he was
attacked, he did not exceed the limits of self-defense, nor did he use means which were not rationally
necessary, particularly because the instrument with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the darkness of the house and the consteration
which naturally resulted from such strong aggression, it was not given him to known or distinguish
whether there was one or more assailants, nor the arms which they might bear, not that which they might
accomplish, and considering that the lower court did not find from the accepted facts that there existed
rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal
Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the
city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8
paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he
fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had
before simulated a different voice) saying, "Oh! they have killed me," and hastening to his assistance,
finding the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's sake, or I am
ruined," realizing that he had been the victim of a joke, and not receiving a reply, and observing that his
friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as
the author of this homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga did not so find, but
only found in favor of the accused two of the requisites of said article, but not that of the reasonableness
of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one
day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence,
holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of
the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means
employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada,
Vol. I, p. 136.)
 QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone
thrown against his window at this, he puts his head out of the window and inquires what is wanted,
and is answered "the delivery of all of his money, otherwise his house would be burned" because of
which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same
spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense
with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of
the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to
exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed,
and condemned the accused to twelve months of prision correctional for the homicide committed. Upon
appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors,
who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just
self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman
struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of
his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property
and of the property committed to his charge; that in view of all the circumstances, as they must have presented
themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief
that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he
believed them to be he would have been wholly exempt from criminal liability on account of his act; and that he
can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake
as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believe
threatened his person and his property and the property under his charge.

The judgment of conviction and the sentence imposed by the trial court should be reversed, and the defendant
acquitted of the crime with which he is charged and his bail bond exonerated, with the costs of both instance de
oficio. So ordered.

Johnson Moreland and Elliott, JJ., concur.

Arellano, C.J., and Mapa, J., dissent.

Separate Opinions

TORRES, J., dissenting:

The writer, with due respect to the opinion of the majority of the court, believes that, according to the merits of
the case, the crime of homicide by reckless negligence, defined and punishes in article 568 of the Penal Code,
was committed, inasmuch as the victim was wilfully (voluntariomente) killed, and while the act was done
without malice or criminal intent it was, however, executed with real negligence, for the acts committed by the
deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the
accused that the person who assaulted him was a malefactor; the defendant therefore incurred responsibility in
attacking with a knife the person who was accustomed to enter said room, without any justifiable motive.

By reason of the nature of the crime committed, in the opinion of the undersigned the accused should be
sentenced to the penalty of one year and one month of prision correctional, to suffer the accessory penalties
provided in article 61, and to pay an indemnify of P1,000 to the heirs of the deceased, with the costs of both
instances, thereby reversing the judgment appealed from.
 11. EN BANC

[G.R. No. 4912. March 25, 1909. ]

THE UNITED STATES, Plaintiff-Appellee, v. EMILIA GUY-SAYCO, Defendant-Appellant.

C. Ledesma, for Appellant.

Solicitor-General Harvey, for Appellee.

SYLLABUS

1. CRIMINAL PRACTICE AND PROCEDURE ACTS PLEA OF SELF-DEFENSE. In the decision of a

criminal cause, it is improper to hold that there was unlawful aggression, and thus allow the allegation of
exemption from responsibility on the ground of self-defense when there has been nothing more than a
threatening or intimidating attitude which, under no consideration, is sufficient to justify the commission of a
criminal act punishable per se, inasmuch as it has always been held by the courts that it is necessary that there
be an attack, a material aggression, or an act positively showing the wrongful intent of the aggressor, in order to
warrant such defense.

2. ID.; JUDGMENT IN CRIMINAL CASE SHOULD ALSO FIX CIVIL LIABILITY. In deciding a cause,
the civil responsibility incurred by the accused, consequent upon his criminal liability, must be declared,
because every person criminally responsible for a crime or misdemeanor is also civilly liable, and the courts are
obliged to fix the amount of indemnity for damages in the terms prescribed for the reparation of damage caused
by the crime. (Arts. 17, 121, and 122, Penal Code.)

DECISION

TORRES, J. :

Long before the commission of the crime herein prosecuted, Gelasio Galupitan, the husband of the accused,
entered into unlawful relations with the deceased Lorenza Estrada; all were residents of the town of Santa Cruz,
the capital of the Province of La Laguna.

The accused, Emilia Guy-Sayco, duly became aware of this relation. As her husband had stayed away from
home for more than two weeks, remaining in the barrio of Dujat, distant about two and one-half hours walk
from the said town under the pretext that he was engaged in field work, on the 20th of March, 1907, at about 2
p.m., she decided to go to said barrio and join him. To this end she hired a carromata, and after getting some
clothes and other things necessary for herself and husband, started out with her infant child and a servant girl;
but before reaching the barrio and the camarin where her husband ought to be, night came on, and at about 7
oclock she alighted and dismissed the vehicle after paying the driver. They had yet to travel some distance, and
for fear of being attacked she disguised herself, using her husbands clothes and a hat given to her by her
companion, and dressed in this manner they continued on their way. On seeing her husbands horse tied in front
of a house she suspected that he was inside; thereupon she went to the steps leading to the house, which was a
low one, and then saw her husband sitting down with his back toward the steps. She immediately entered the
house and encountered her husband, the deceased, and the owners of the house taking supper together.
Overcome and blinded by jealousy she rushed at Lorenza Estrada, attacked her with a penknife that she carried,
and inflicted five wounds upon her in consequence of which Lorenza fell to the ground covered with blood and
died a few moments afterwards. The accused left the house immediately after the aggression, and went to that of
Modesto Ramos where she changed her clothes.

From an examination of the body made on the following day by Dr. Gertrudo Reyes, it appeared that five
wounds had been inflicted by a cutting and pointed weapon, one of which was on the left side of the breast and
penetrated the left ventricle of the heart; this wound was of necessity mortal, the others being more or less
serious.

A complaint was thereupon filed by the provincial fiscal on May 31, 1907, and the corresponding proceedings
were instituted. The court below entered judgment on June 29 1908 sentencing the accused, Emilia Guy-Sayco,
to the penalty of twelve years and one day of reclusion temporal, to suffer the accessory penalties, to indemnify
the heirs of the deceased in the sum of P1,000, and to pay the costs. From said judgment she has appealed.

The above-stated facts, which have been fully proven in this case, constitute the crime of homicide defined and
punished by article 404 of the Penal Code, for the reason that in the violent death of Lorenza Estrada,
occasioned by the infliction of several wounds, one of which was mortal, none of the circumstances were
present that qualify the crime of assassination and call for a heavier penalty as imposed by the previous article
403 of the code.

The reality and certitude of the crime at bar can not be denied. It has been proven by the testimony of several
witnesses, to wit, Roberto Villaran, Susana de Mesa, the owners of the house, and Maria Ramos, all of whom
witnessed the aggression; they saw the decreased die as the result of five wounds inflicted upon her, one of
which was, of necessity mortal; it was also proven by the testimony of the surgeon who examined the body,
which was seen by the said witnesses and by others who went to the place of the occurrence.

The accused pleaded not guilty, and in exculpation she alleged that, when Lorenza Estrada saw her and heard
her remonstrate with her husband, she being then upstairs, Lorenza at once asked what had brought her there
and manifested her intention to attack her with a knife that she carried in her hand, whereupon the accused
caught the deceased by the right hand, in which she held the weapon, and immediately grappled with her, and in
the struggle that ensued she managed to get hold of a penknife that she saw on the floor close by; she could not
say whether she struck the deceased with it as she could not account for what followed.

From this allegation of the accused, her counsel, with a view to asking that she be absolved, claims that in
wounding the deceased she acted in proper self-defense.

It has been proven beyond a reasonable doubt that as soon as the accused entered the house where she found her
husband, without saying a word, she attacked the deceased with a penknife and inflicted wounds that caused the
immediate death of the latter. Such an allegation can not therefore be admitted, been though corroborated by the
husband and the servant of the accused, inasmuch as the testimony of the latter is entirely contradicted and
destroyed by the testimony of the witnesses for the prosecution, who were present at the aggression, and who
deny that the servant was present; it is not true that a penknife was found on the floor of the house; its is
probable that the instrument with which the crime was committed was carried by the accused when she went to
said house; and even though it were true that when the accused, Emilia, made her appearance, the deceased
Lorenza arose with a knife in her hand and in a threatening manner asked the accused what had brought her
there, such attitude, under the provisions of article 8, No. 4 of the Penal Code, does not constitute that unlawful
aggression, which, among others, is the first indispensable requisite upon which exemption by reason of self-
defense may be sustained.

In order to consider that an unlawful aggression was actually committed, it is necessary that an attack or
material aggression, an offensive act positively determining the intent of the aggressor to cause an injury shall
have been make; a mere threatening or intimidating attitude is not sufficient to justify the commission of an act
which is punishable per se, and allow a claim of exemption from liability on the ground that it was committed in
self-defense. It has always been so recognized in the decisions of the courts, in accordance with the provisions
of the Penal Code.

In the commission of the crime the presence of mitigating circumstance No. 7 of article 9 of the code should be
considered, without any aggravating circumstance to neutralize its effects, for the reason that it has been proven
that the accused, at the time when the crime was committed, acted upon the impulse of passion and under great
jealous excitement at the sight of her husband taking supper in the company of his mistress, after he had been
absent from the conjugal dwelling for several days.

As to the penalty of indemnity contained in the judgment appealed from and impugned by the defense, article
17 of the code reads: Every person criminally liable for a crime or misdemeanor is also civilly liable, and
according to the established rule of the courts, in order that an accused person may be declared to have incurred
civil liability, it is sufficient that said liability shall proceed from, or be the consequence of the criminal liability,
and in addition thereto, article 122 of said code provides that the courts shall regulate the amount of indemnity
for damages under said civil liability, upon the same terms as prescribed for the reparation of damage in article
121 of the code, and a finding on the matter should be contained in the judgment.

For the reasons above set forth it is our opinion that the judgment appealed from should be affirmed, as we do
hereby affirm it in all its parts with costs against the Appellant. So ordered.

Arellano, C.J., Mapa, Johnson and Carson, JJ., concur.

 12. EN BANC

[G.R. No. L-162. April 30, 1947.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DIOSCORO ALCONGA and ADOLFO

BRACAMONTE, Defendants. DIOSCORO ALCONGA, Appellant.

Jose Avancelia for Appellant.

Assistant Solicitor General Kapunan, jr. and Solicitor Barcelona for Appellee.

SYLLABUS

1. CRIMINAL LAW; HOMICIDE; SELF-DEFENSE; FLIGHT OF ADVERSARY. An accused was no

longer acting in self-defense when he pursued and killed a fleeing adversary, though originally the unlawful
aggressor, there being then no more aggression to defend against, the same having deceased from the moment
deceased took to his heels.

2. ID.; ID.; ID.; ID.; PROVOCATION, AS MITIGATING CIRCUMSTANCE. Provocation given by an

adversary at the commencement an during the first stage of a fight, cannot be considered as mitigating
circumstance, where the appellant pursued an killed the former while fleeing and the deceased, as in the case at
bar, from the moment he fled after the first stage of the fight to the moment he died, did not give any
provocation for appellant to pursue, much less further to attack him.

3. ID.; ID.; ID.; ID.; ID. Provocation in order to be a mitigating circumstance must be sufficient and
immediately preceding tact. "It should be proportionate to the act committed a d adequate to stir one to its
commission."cralaw virtua1aw library

4. ID.; ID.; ID.; ID.; ID.; NEED OF PROOF. Sufficient provocation, being a matter of defense, should, like
any other, be affirmatively proven by the accused.

5. ID.; ID.; ID.; ID.; ID.; ILLEGAL AGGRESSION, DEFINED. "Illegal aggression" is equivalent to assault
or at least threatened assault of an immediate and imminent kind.

DECISION

HILADO, J.:

On the night of May 27, 1943, in the house of one Mauricio Jepes in the municipality of San Dionisio, Province
of several persons were playing prohibited games . n., pp. 95, 125). The deceased Silverio Barion was the
banker in the game of black jack, and Maria de Raposo, a witness for the prosecution, was one of those playing
the game (t. s. n., p. 96). Upon invitation of the said Maria de Raposo, the accused Dioscoro Alconga joined her
as a partner, each of them contributing the sum of P5 to a common fund (t. s. n., pp. 95, 125). Maria de Raposo
played the game while the said accused posted himself behind the deceased, acting as a spotter of the cards of
the latter and communicating by signs to his partner (t. s. n., 95-96, 126). The deceased appears to have suffered
losses in the game because of the team work between Maria de Raposo and the accused Alconga (t. s. n., pp. 96,
126). Upon discovering what the said accused had been doing, the deceased became indignant and expressed his
anger; the former (t. s. n., pp. 96, 126). An exchange of words followed, and the two would have come to blows
but for the intervention of the maintainer of the games t. s. n., p. 96). In a fit of anger, the deceased left the
house but not before telling the accused Alconga, "tomorrow morning I will give you a breakfast" (t. s. n., p.
96), which expression would seem to signify an intent to inflict bodily arm when uttered under such
circumstances.

The deceased and the accused Alconga did not meet hereafter until the morning of May 29, 1943, when the
latter was in the guardhouse located in the barrio of Santol, performing his duties as "home guard" (t. s. n., pp.
98-100). While the said accused was seated on a bench in the guardhouse, the deceased came along and,
addressing the former, said, "Coroy, this is your breakfast," followed forthwith by a swing of his "pingahan" (t.
s. n., p. 100). The accused avoided the blow by falling to the ground under the bench with the intention to crawl
out of the guardhouse (t. s. n., pp. 100-101). A second blow was given but failed to hit the accused, hitting the
bench instead (t. s. n., p. 101). The accused managed to go out of the guardhouse by crawling on his abdomen
(t. s. n., p. 101). While the deceased was in the act delivering the third blow, the accused, while still in a
crawling position (t. s. n., p. 119), fired at him with his revolver, causing him to stagger and to fall to the ground
(t. s. n., p. 101). Rising to his feet, the deceased drew forth his dagger and directed a blow at the accused who,
however, was able to parry the same with his bolo (t. s. n., pp, 101-102). A hand-to-hand fight ensued (t. s. n., p.
102). Having sustained several wounds, the deceased ran away but was followed by the accused (t. s. n., p. 6).
After running a distance of about 200 meters (t. s. n., pp. 21, 108), the deceased was overtaken, and another
fight took place, during which the mortal bolo blow the one which slashed the cranium was delivered,
causing the deceased to fall to the ground, face downward, besides many other blows delivered right and left (t.
s. n., pp. 6, 28). At this instant, the other accused, Adolfo Bracamonte, arrived and, being the leader of the
"home guards" of San Dionisio, placed under his custody the accused Alconga with a view to turning him over
to the proper authorities (t. s. n., pp. 102-105).

On their way to San Dionisio, the two accused were stopped by Juan Collado, a guerrilla soldier (t. s. n., pp. 80,
104). Adolfo Bracamonte turned over Alconga to Collado who in turn took him to the headquarters (t. s. n., pp.
81, 104). In the afternoon of the same day, Collado delivered Alconga to Gregorio Barredo, a municipal
policeman of San Dionisio, together with the weapons used in the fight: a revolver, a bolo, and a dagger (t. s. n.,
pp. 81, 104).

The injuries sustained by the deceased were described by police sergeant Gil G. Estaniel as
follows:jgc:chanrobles.com.ph

"P. Y que hicieron ustedes cuando ustedes vieron Barion?

R. Examine sus heridas.

"P. Donde ha encontrado usted las heridas, en que parte del cuerpo?

R. En la cabeza, en sus brazos, en sus manos, en la mandbula inferior, en la parte frente de su cuello, en su
pecho derecho, y tambien en el pecho izquierdo, y su dedo menique habia volado, se habia cortado, y otras
pequeas heridas mas.

"P. En la cabeza, vio usted heridas?

R. Si, seor.

"P. Cuantas heridas?

R. Una herida en la region parietal derecha y una contusion en la corona de la cabeza.

"P. Ivio usted el craneo?.

R. En el craneo llevaba una herida, en el craneo se ha roto.

"P. En el pecho, que herida ha encontrado usted?

R. Debajo de la tetilla derecha, una herida causada por una bala.

"P. Y otras heridas en el pecho, puede usted decir que clase de heridas?

R. Heridas causadas por bolo.

P. Como de grande aquellas heridas en el pecho?

R. No recuerdo la dimension de las heridas en el pecho.

P. Pero en la cabeza?

R. La cabeza se rajo por aquella herida causada por el bolo." (T. s. n., p. 25.)

It will be observed that there were two stages in the fight between appellant and the deceased. The initial stage
commenced when the deceased assaulted appellant without sufficient provocation on the part of the latter.
Resisting the aggression, appellant managed to have the upper hand in the fight, inflicting several wounds upon
the deceased, on account of which the latter fled in retreat. From that moment there was no longer any danger to
the life of appellant who, being virtually unscathed, could have chosen to remain where he was. Resolving all
doubts in his favor, considering that in the first stage the deceased was the unlawful aggressor and defendant
had not given sufficient provocation, and considering further that when the deceased was about to deliver the
third blow, appellant was still in a crawling position and, on that account, could not have effectively wielded his
bolo and therefore had to use his "paltik" revolver his only remaining weapon ; we hold that said appellant
was then acting in self-defense.

But when he pursued the deceased, he was no longer acting in self-defense, there being then no more aggression
to defend against, the same having ceased from the moment the deceased took to his heels. During the second
stage of the fight appellant inflicted many additional wounds upon the deceased. That the deceased was not
fatally wounded in the first encounter is amply shown by the fact that he was still able to run a distance of some
200 meters before being overtaken by appellant. Under such circumstances, appellants plea of self-defense in
the second stage of the fight cannot be sustained. There can be no defense where there is no aggression.

"Although the defendant was not the aggressor, he is not exempt from criminal liability for the reason that it is
shown that he struck several blows, among them the fatal one, after the necessity for defending himself had
ceased, his assailant being then in retreat. Therefore one of the essential ingredients of self-defense specified in
No. 4, article 8 of the Penal Code is wanting" (now article 11, case No. 1, Revised Penal Code). (United States
v. Dimitillo, 7 Phil., 475, 476; words in parenthesis supplied.)

". . . Even if it be conceded for the moment that the defendants were assaulted by the four (offended parties), the
right to kill in self-defense ceased when the aggression ceased; and when Toledo and his brothers turned and
ran, without having inflicted so much as a scratch upon a single one of the defendants, the right of the
defendants to inflict injury upon them ceased absolutely. They had no right to pursue, no right to kill or injure. A
fleeing man is not dangerous to the one from whom he flees. When danger ceases, the right to injure ceases.
When the aggressor turns and flees, the one assaulted must stay his hand." (United States v. Vitug, 17 Phil., 1,
19; Emphasis supplied.)
Upon the foregoing facts, we hold that appellants guilt of the crime of homicide has been established beyond
reasonable doubt. The learned trial court appreciated in his favor two mitigating circumstances: voluntary
surrender and provocation on the part of the deceased. The first was properly appreciated; the second was not,
since it is very clear that from the moment he fled after the first stage of the fight to the moment he died, the
deceased did not give any provocation for appellant to pursue much less further to attack him.

The only provocation given by him was imbibed in, and inseparable from, the aggression with which he started
the first stage of the fight. The evidence, as weighed and appreciated by the learned trial judge, who had heard,
seen and observed the witnesses testify, clearly shows that said e ended with the flight of the deceased after
receiving a bullet wound in his right breast, which caused him to stagger and fall to the ground, and several bolo
wounds inflicted by appellant during their hand-to-hand fight after had gotten up. The learned trial judge
said:jgc:chanrobles.com.ph

"The evidence adduced by the prosecution and the defense in support of their respective theories of the case
vary materially on certain points. Some of these facts have to be admitted and some have to be rejected with the
end in view of arriving at the truth. To the mind of the Court, what really happened in the case at bar, as can be
disclosed by the records, which lead to the killing of the leased on that fatal morning of May 29, 1945 (should
be 1943), is us follows:chanrob1es virtual 1aw library

x x x

In the morning of May 29, 1943, while Dioscoro Alconga was alone in the guardhouse performing his duties as
guard or ronda in Barrio Santol, the deceased Silverio Barion passed by with a pingahan. That was the first
time the deceased and the accused Alconga had met since that eventful night of May 27th in the gambling house
of Gepes. Upon seeing the accused Alconga, who was then seated in the guardhouse, the deceased cried:
Coroy, this is now the breakfast! These words of warning were immediately followed by two formidable
swings of the pingahan directed at the accused :Alconga which failed to hit him. Alconga was able to avoid the
blows by falling to the ground and crawling on his abdomen until he was outside the guardhouse. The deceased
followed him and while in the act of delivering the third blow, Dioscoro Alconga fired at him with his revolver
thereby stopping the blow in mid-air. The deceased fell to the ground momentarily and upon rising to his feet,
he drew forth a dagger. The accused Alconga resorted to his bolo and both persons being armed, a hand-to-hand
fight followed. The deceased having sustained several wounds from the hands of Alconga, ran away with the
latter close to his heels."cralaw virtua1aw library

The foregoing statement of the pertinent facts by the learned trial judge is in substantial agreement with those
found by us and narrated in the first paragraphs of this decision. Upon those facts the question arises whether
when the deceased started to run and flee, or thereafter until he died, there was any provocation given by him
for appellant to pursue and further to attack him. It will be recalled, to begin with, that the first stage of the fight
was provoked when the deceased said to appellant "Coroy, this is now the breakfast," or "This is your
breakfast," followed; forthwith by a swing or two of his "pingahan." These words without the immediately
following attack with the "pingahan" would not have been uttered, we can safely assume, since such an
utterance alone would have been entirely meaningless. It was the attack, therefore, that effectively constituted
the provocation, the utterance being, at best, merely a prelude to the attack. At any rate, the quoted words by
themselves, without the deceaseds act immediately following them, would certainly not have been considered a
sufficient provocation to mitigate appellants liability in killing or injuring the deceased. For provocation in
order to be a mitigating circumstance must be sufficient and immediately preceding the act. (Revised Penal
Code, article 13, No. 4.)

Under the doctrine in United States v. Vitug, supra, when the deceased ran and fled without having inflicted so
much as a scratch upon appellant, but after, upon the other hand, having been wounded with one revolver shot
and several bolo slashes, as aforesaid, the right of appellant to inflict injury upon him ceased absolutely
appellant "had no right to pursue, no right to kill or injure" said deceased for the reason that "a fleeing man is
not dangerous to the one from whom he flees. If the law, as interpreted and applied by this Court in the Vitug
case, enjoins the victorious contender from pursuing his opponent on the score of self-defense, it is besause this
Court considered that the requisites of self-defense had ceased to exist, principal and indispensable among these
being the unlawful aggression of the opponent (Rev. Penal Code, article 11, No. 1; 1 Viada, 5th ed., 173).

Can we find under the evidence of record that after the cessation of said aggression the provocation thus
involved therein still persisted, and to a degree sufficient to extenuate appellants criminal responsibility for his
acts during the second stage of the fight? Appellant did not testify nor offer other evidence to show that when he
pursued the deceased he was still acting under the impulse of the effects of that provocation, be it anger,
obfuscation or the like. The Revised Penal Code provides:jgc:chanrobles.com.ph

"ART. 1.3. Mitigating circumstances:chanrob1es virtual 1aw library

xx x x

"4. That sufficient provocation or threat on the part of the offended party immediately preceded the act."cralaw
virtua1aw library

It is therefore apparent that the Code requires for provocation to be such a mitigating circumstance that it not
only immediately precede the act but that it also be sufficient. In the Spanish Penal Code, the adjective
modifying said noun is "adecuada" and the Supreme Court of Spain in its judgment of June 27, 1883,
interpreted the equivalent provision of the Penal Code of that country, which was the source of our own existing
Revised Penal Code, that "adecuada" means proportionate to the damage caused by the act. Viada (Vol. 11, 5th
ed., p. 51) gives the ruling of that Supreme Court as follows:chanrob1es virtual 1aw library

El Tribunal Supremo ha declarado que la provocacion o amenaza que de parte del ofendido ha de preceder para
la disminucion de la responsabilidad criminal debe ser proporcionada al dao que se cause, lo cual no concurre
a favor del reo si resulta que la unica cuestion que hubo fue si en un monton de yeso habia mas o menos
cantidad y como perdiera la apuesta y bromeando dijera el que la gano que beberia vino de balde, esa pequea
cuestion de amor propio no justificaba en modo alguno la ira que le impelio a herir y matar a su contrario. (S.
de 27 de junio de 1883, Gaceta de 27 de septiembre.)

Justice Albert, in his commentaries on the Revised Penal Code, 1946 edition, page 94, says: "The provocation
or threat must be sufficient, which means that it should be proportionate to the act committed and adequate to
stir one its commission" (Emphasis supplied).

Sufficient provocation, being a matter of defense, should, like any other, be affirmatively proven by the
accused.

This the instant appellant has utterly failed to do. Any way, it would seem self-evident that appellant could
never have succeeded in showing that whatever remained of the effects of the deceaseds aggression, by way of
provocation after the latter was already in flight, was proportionate to his killing his already defeated adversary.

That provocation gave rise to a fight between the two men, and may be said, not without reason, to have spent
itself after appellant had shot the deceased in his right breast and caused the latter to fall to the ground; or
making a concession in appellants favor after the latter had inflicted several bolo wounds upon the deceased,
without the deceased so much as having scratched his body in their hand-to-hand fight when both were on their
feet again. But if we are to grant appellant a further concession, under the view most favorable to him, that
aggression must be deemed to have ceased upon the flight of the deceased upon the end of the first stage of
the fight. In so affirming, we had to strain the concept in no small degree. But to further strain it so as to find
that said aggression or provocation persisted even when the deceased was already in flight, clearly accepting
defeat and no less clearly running for his life rather than evincing an intention of returning to the fight, is more
than we can sanction. It should always be remembered that "illegal aggression" is equivalent to assault or at
least threatened assault of an immediate and imminent kind.

"Agression ilegitimate. Agresion vale tanto como acometimiento. Para que exista el derecho de defensa es
preciso que se nos acometa, que se nos ataque, o cuando menos, que se nos amenace de atacanos de un modo
inmediato e inminente; v. gr., desenvainando el pual para herirnos con el o apuntando la pistola para dispararla
contra nosotros." (Viada, 5. edicion, 173.)

After the flight of the deceased there was clearly neither an assault nor a threatened assault of the remotest kind
It has been suggested that when pursuing his fleeing, opponent, appellant might have thought or believed that
said opponent was going to his house to fetch some other weapon. But whether we consider this as a part or
continuation of the self-defense alleged by appellant, or as a separate circumstance, the burden of proof to
establish such a defense was, of course, upon appellant, and he has not so much as attempted to introduce
evidence for this purpose. If he really thought so, or believed so, he should have positively proven it, as any
other defense. We cannot now gratuitously assume it in his behalf.

It is true that in the case of United States v. Rivera (41 Phil., 472, 474), this Court held that one defending
himself or his property from a felony violently or by surprise threatened by another is not obliged to retreat but
may pursue his adversary until he has secured himself from danger. But that is not this case. Here from the very
start appellant was the holder of the stronger and more deadly weapons a revolver and a bolo, as against a
piece f bamboo called pingahan" and a dagger in the possession of the deceased. In actual performance
appellant, from the very beginning, demonstrated his superior fighting ability; and he confirmed it when after
the deceased as first felled down by the revolver shot in his right breast, and after both combatants had gotten
up and engaged in a hand-to-hand fight, the deceased using his danger and appellant his bolo, the former
received several bolo wounds while the latter got through completely unscathed. And when the deceased
thereupon turned and fled, the circumstances were such that it would be unduly stretching e imagination to
consider that appellant was still in anger from his defeated and fleeing opponent. Appellant reserved his
revolver and his bolo, and if he could therefore so easily overpower the deceased, when the latter ad not yet
received any injury, it would need, indeed, an unusually strong positive showing which is completely sent
from the record to persuade us that he had not t "secured himself from danger" after shooting his weakly
armed adversary in the right breast and giving him several bolo slashes in different other parts of his body. To so
hold would, we believe, be unjustifiably extending the doctrine of the Rivera case to an extreme not therein
contemplated.

Under article 249, in relation with article 64, No. 2, of the Revised Penal Code, the crime committed by
appellant is punishable by reclusion temporal in its minimum period, which would be from 12 years and 1 day
to 14 years and 8 months. However, in imposing the penalty, we take into consideration the provisions of
section 1 of the Indeterminate Sentence Law (Act No. 4103), as amended by Act No. 4225. Accordingly, we
find appellant guilty of the aforesaid crime of homicide and sentence him to an indeterminate penalty of from 6
years and 1 day of prison mayor to 14 years and 8 months of reclusion temporal, to indemnify the heirs of the
deceased in the sum of P2,000, and to pay the costs.

As thus modified, the judgment appealed from is hereby affirmed. So ordered.

Moran, C.J., Pablo, Bengzon, Briones, Hontiveros, Padilla and Tuason, JJ., concur.

Moran, C.J., I certify that Mr. Justice Feria concurs in this decision.

Separate Opinions
PARAS, J., dissenting:chanrob1es virtual 1aw library

I agree to the statement of facts in so far as it concerns what is called by the majority the first stage of the fight.
The following narration dealing with the second stage is not, however, in accordance with the record: "Having
sustained several wounds, the deceased ran away but was followed by the accused (t. s. n., p. 6). After running a
distance of about 200 meters (t. s. n., pp. 21, 108), the deceased was overtaken, and another fight took place,
during which the mortal bolo blow the one which slashed the cranium was delivered, causing the
deceased to fall to the ground, face downward besides many other blows delivered right and left (t. s. n., pp. 6,
28)."cralaw virtua1aw library

It should be noted that the testimony of witness Luis Ballaran for the prosecution has been completely discarded
by the lower court and we can do no better in this appeal. Had said testimony been given credit, the accused-
appellant would appear to have been the aggressor from. the beginning, and the facts constitutive of the first
stage of the fight, as testified to by said accused, should not have been accepted by the lower court. Now,
continuing his testimony, the accused stated: "Cuando yo paraba las pualadas se avalanzaba hacia mi y yo daba
pasos atras hasta llegar al terleno palayero (t. s. n., p. 102). Y mientras el seguia avalanzandome dandome
punaladas y yo seguia dando pasos atras, y al final, cuando el ya quiso darme na pualada certera con fuerza el
se cayo al suelo por su inercia (t. s. n., p. 102). Si, seor, yo daba pasos atras y tratando de parar la pualada (t.
s. n., p. 108)."cralaw virtua1aw library

It is thus shown that the accused never pursued the deceased. On the contrary, the deceased tried to continue his
assault started during the first stage of the fight, and the accused had been avoiding the blows by stepping
backward.

There may be error as to the exact distance between the guardhouse and the place where the deceased fell. What
is very clear is that it was during the first stage of the fight that the deceased received a wound just below the
right chest, caused by a bullet that penetrated and remained in said part of the body. According to the witness for
the prosecution, that wound was also fatal.

Since the lower court by its decision has considered the testimony of the witnesses for the prosecution to be
unworthy of credit, and, as we also believe that said witnesses were really not present at the place and time of
the occurrence, this Court is bound by the testimony of the witnesses for the defense as to what in fact
happened, under and by which the appellant is shown to have acted in self-defense.

Wherefore, he should be acquitted.

PERFECTO, J., dissenting:chanrob1es virtual 1aw library

Four witnesses testified for the prosecution. In syn thesis their testimonies are as follows:chanrob1es virtual
1aw library

Luis Ballaran. On May 29, 1943, at about 9 oclock a. m., while the two accused Dioscoro Alconga and
Rodolfo Bracamonte were in search for home guards, Siverio Barion passed by. Alconga invited him for
breakfast. But Barion ran and Alconga followed him. When Barion looked back, Bracamonte hit him with a
stick at the left temple. The stick was of bahi. Barion fell down. Alconga stabbed him with his bolo. Then he
fired with his paltik. After having been fired at with the paltik, Barion rose up and ran towards his house. The
two accused pursued him. Alconga stabbed him right and left and Bracamonte hit him with his bahi. When
Barion breathed no more, the two accused went to the municipal building of San Dionisio. The witness went
home without approaching Barion. During the whole fight, the witness remained standing in the home guard
shed. At the time there were no other people in the place. The witness is an uncle of the deceased Barion. The
shed was about half a kilometer from the farm in which the witness was working. The place where Barion fell
was about the middle between the two places. The witness did not intervene in the incident nor shouted for help.
He did not tell anybody of the incident, neither the chief of police, the fiscal, nor the justice of the peace.

Gil G. Estaniel, Police Sergeant of San Dionisio. He went in the company of the justice of the peace to the
place of the incident. He saw the body of the deceased Barion and examined his wounds. The deceased had
wounds in the head, arms, hands, lower jaw, neck, chest. The small finger of his right hand was severed. There
were other wounds. The cranium was broken. At the right side of the chest there was a gunshot wound. After the
inspection, the body of the deceased was delivered to the widow. The accused were arrested, but refused to
testify.

Ruperto L. Libres, acting clerk of court since May 16, 43. He received one paltik with blank cartridge, one
bolo, one cane of bahi and one dagger, which weapons he d not produce save the paltik. The other effects were
missing due to transfers caused by frequent enemy penetration in Dingle. The bolo was a rusty working bolo
The dagger was 6 inches long, made of iron. The bolo was 11/2 feet long. The bahi was a cane of average legth,
about 2 inches wide and 3/4 of an inch thick.

Maria de Raposo. On May 29, 1943, the witness was walking following Silverio Barion. When the latter
passed from of the home guard shed, Bracamonte pursued him d hit him with the bahi. Barion fell down;
Alconga proached him and stabbed him with his bolo, after which shot him with his paltik. When Barion saw
that the accused were looking at Luis Ballaran he rose up and ran awards a rice-field where he fell down. The
accused pursued him and stabbed him right and left. When Barion died, the accused went away. Bracamonte
shouted that he as ready to face the relatives of the deceased who might feel aggrieved. The witness was about
twenty meters from the place of the incident. The deceased was her cousin. The witness also passed in front of
the shed, but does not know whether Luis Ballaran who was in the shed was able to see her. She passed at about
three meters from Luis Ballaran. Before Bracamonte delivered the first low to Barion, the witness did not hear
any exchange f words. When Barion fell, the witness remained standing at the canal of the road at about twenty
meters from Ballaran. On Thursday night, May 27, there was gambling going on in the house of Mauricio
Gepes. The witness played black jack with Dioscoro Alconga against Silverio Barion.

The two accused and three witnesses testified for the defense, and their testimonies are synthesized as
follows:chanrob1es virtual 1aw library

Juan Collado. This witness is a soldier who took part n the arrest of Dioscoro Alconga, whom he delivered to
Barredo with a revolver, a bolo, and a dagger.

Felix Dichosa. In the morning of May 29, 1943, the witness was in the home guard shed. When Bioy
(Silveno Barion) was about to arrive at the place, the witness asked him if he had fish. He answered no and then
went a his way. The witness went to the road and he heard Bioy saying: "So you are here, lightning ! Your hour
has come." The witness saw Bioy striking Dioscoro Alcon with the lever he used for carrying fish. Alconga was
not hit. Bioy tried to strike him again, but Alconga sought cover under the bench of the shed. The bench was hit.
When Bioy pursued him and gave him a blow with a bolo, the witness heard a gunshot and he saw Bioy falling
down. Upon falling in a sitting position, Bioy took a dagger with the purpose of stabbing Alconga. Upon seeing
this, Alconga stabbed Barion right and left, while Barion was coming against Alconga. When Barion fell into
the canal, the witness shouted for help. Rodolfo Bracamonte and Dalmacio Mendoza came. When the witness
came out from the shed and was at a distance of ten brazas, he saw Ballaran, and requested him to intervene in
the fight, because the witness felt that Bioy was about to kill Alconga. Ballaran went to their shed and the
witness went to his house. At noon, Ballaran went to the house of the witness to ask him to testify and gave him
instructions to testify differently from what actually had happened. The witness told him that it would be better
if Ballaran himself should testify and Ballaran answered: "I cannot be cause I was not present. You can testify
better because you were present. I will go down to look for another witness."cralaw virtua1aw library

Dalmacio Mendoza. On the morning of May 29, 1943, he went to the house of Rodolfo Bracamonte to
borrow a small saw and one auger. While the witness was conversing with Bracamonte, a gunshot was fired.
Bracamonte announced that he was going to the home guard shed and stated: "That Goroy is a fool, because he
fired a revolver which has but one bullet." The witness followed. Upon reaching the shed they saw Felix
Dichosa, who said that Bracamonte and the witness should hurry because Coroy to be killed by Bioy. The
witness saw Bioy falling. In front of him was Alconga who took a dagger from the ground. The dagger was in
Barions hand before he fell. Bracamonte asked Alconga: "Coroy, what did you do to Silverio?" Alconga
answered: "I killed Bioy, because if I did not he would have killed me. My shirt was pierced by the dagger, and
if I did not evade I would have been hit. "Bracamonte said. "Go to town, to the authority, I will accompany
you." After leaving the place, Alconga, Bracamonte and the witness met Luis Ballaran who asked: Rodolfo.
what happened to the boys?" Rodolfo answered: Go and help Bioy because I am going to bring Coroy to the
town officer." Ballaran went to the place where Barion as lying, while Alconga and Bracamonte went to town.

Adolfo Bracamonte. His true name is Adolfo and not Rodolfo as stated in the information, which was
amended accordingly. He belies the testimonies of Luis Ballaran and Maria de Raposo. At about 7 oclock a. m.
on May 29, 1943, he went to the home guard shed, he being the leader. "When he found it without guards, he
called Alconga to mount guard and delivered to him the paltik Exhibit A. . The witness returned home to take
breakfast. Dalmacio Mendoza came to borrow a small saw and auger, because the witness is also a carpenter.
He heard a gunshot, and he went to the shed, followed by Dalmacio. When they were approaching the shed,
Felix Dichosa shouted: "Come in a hurry, because Bioy is going to kill Dioscoro Alconga." The witness asked:
"Where are they?" Dichosa showed e place. The witness went towards the place and he saw o persons fighting.
One fell down. Upon seeing Barion falling, the witness shouted to Alconga: "What happened to you?" Alconga
answered: "Manoy, I stabbed Bioy, because if I did not he was to kill me," showing his shirt. When Barion fell
down the witness saw him with dagger. Upon meeting him coming from the opposite direction, Ballaran
addressed Bracamonte: "Rodolfo what happened?" Baracamonte answered: "Bioy is in the rice land. Help him
because I am going to bring Dioscoro to the town and I will return immediately." Ballaran went to the place
where Barion fell. On the way, Alconga was taken by soldier Juan Collado who later brought him to the town of
San Dionisio. The witness did not carry at the time of the incident any cane of bahi nor did he carry one on
other occasions. The occupation of the deceased was selling fish and he used to take much tuba. He was of
aggressive character and sturdier than Alconga. Once, Barion gave a fist blow to the witness and on another
occasion stabbed him with a bolo, wounding him in the head. For such stabbing, Barion was held in prison for
one month.

Dioscoro Alconga. On May 27, Thursday, at night, he went to gamble in the house of Mauricio Gepes.
Mahjong, poker, monte and black jack were being played in the house. Maria de Raposo invited Alconga to be
her partner in black jack against Barion who was then the banker. Each put a share of P5. When Alconga placed
himself behind Barion, the latter saw Maria winking to Alconga. Barion looked back at Alconga saying: "Coroy
it seems that you are cheating. Son of a whore." Alconga answered "Bioy you are also son of a whore. I am not
like you who lives on cheating." Barion stood up to give a fist blow to Alconga who pinned him to his sit and
attempted to give him a fist blow. The owner of the house separated them. Barion struck Maria de Raposo,
because he was losing in the game, threw away the cards, took the money from the table, and rose to leave the
place. While he was walking he addressed Alconga: "Coroy you are son of a whore. Tomorrow I will give you a
breakfast. You failed to take lesson by the fact that I boloed the head of your brother," referring to Bracamonte.
When Alconga saw Maria leaving the place, he pursued her asking for his share of the winnings. Maria
answered: "What winnings are you asking for?" Alconga said: "You are like your cousin. Both of you are
cheaters." Maria went away insulting the accused. On the morning of the 29th, Alconga went to one of his
houses carrying an old working bolo to do some repairing. He left his long combat bolo in one of his houses. On
the way he met Bracamonte who instructed him to mount guard in the home guard shed, because no one was
there. Bracamonte gave him a paltik After staying about two hours in the shed, Bioy came and upon seeing him,
threw away his baskets and with his carrying lever gave a blow to Alconga, saying "This is your breakfast."
Alconga was not hit because he dodged the blow, by allowing himself to fall down. He sought cover under a
bench with the purpose of going away. Barion gave him another blow, but his lever hit the bench instead. When
Alconga was able to come out from under the bench, Barion went to the other side of the shed with the intention
of striking him. Alconga took the paltik and fired. Barion fell down losing hold of the lever. Both stood up at the
same time; Barion took his dagger and stabbed Alconga with it saying: "You are son of a whore, Coroy, I will
kill you." Alconga took his bolo to stop the dagger thrust. Barion continued attacking Alconga with dagger
thrusts, while Alconga kept stepping back in the direction of the rice lands. In one of his dagger thrusts, Barion
fell down by his own weight. Alconga took the dagger from his hand, and at the same time Alconga heard his
brother Bracamonte asking: "Coroy Coroy, what is that?" Alconga answered: "Manoy, I killed Bioy, because if I
did not he would have killed me." Bracamonte took the paltik, the bolo and the dagger and pushing Alconga
said: "Go to town." Alconga added: "Look, Bioy gave me dagger thrusts, if I did not escape he would had killed
me," showing his torn shirt. Bracamonte said: "Go to town, I will bring you to the town officer." On the way,
they met Luis Ballaran who asked: "Rodolfo, what happened to the boys?" Bracamonte answered: "Uncle Luis,
go to help Silverio at the rice land because am going to bring my brother to town and I will return soon.

For all the foregoing we are convinced:chanrob1es virtual 1aw library

1. That the testimonies of Luis Ballaran and Maria Raposo are unworthy of credit. Both have been contradicted
by the witnesses for the defense, and the fact that the lower court acquitted Adolfo Bracamonte, show that it
believed the theory of the defense to the effect that it is not true, as testified to by Luis Ballaran and Maria de
Raposo, that Bracamonte took active part in the fight and it was he who gave the first blow to the deceased with
his bahi cane, causing him to fall. Ballarans declaration to the effect that aside from the two accused, the
deceased and himself, no other people were in the place, is directly contradicted by Maria de Raposo who said
that she even passed in front of Ballaran, within a few meters from him. There being no way of reconciling the
contradicting testimonies of Ballaran and Maria and of determining who among the two, declared the truth, we
cannot but reject both testimonies as unreliable. Felix Dichosa testified the Ballaran went to his house to request
him to testify with instructions to give facts different from those which actually happened. Upon Dichosas
suggestion that Ballara himself testify, Ballaran had to confess that he did not s what happened and he was
going to look for another witness. The prosecution did not dare to recall Ballaran belie Dichosa.

2. That Adolfo Bracamonte did not take part in t fight which resulted in Barions death. When Bracamonte
arrived at the place of the struggle, he found Barion al ready a cadaver.

3. That after rejecting the incredible version of Luis . Ballaran and Maria de Raposo, the only version available
of what happened is the one given in the testimony o Alconga, well-supported and corroborated by all the other
witnesses for the defense.

4. That according to the testimony of Alconga, there not be any question on the following:chanrob1es virtual
1aw library

(a) That Barion had a grudge against Alconga in view of the gambling incident on the night of May 27, in which
he promised to give Alconga a breakfast, which, upon what subsequently happened, was in fact a menace to kill
him.

(b) That while Alconga was alone in the home guard shed, Barion, upon seeing him, suddenly attacked him with
blows with his carrying lever.

(c) That Alconga, to defend himself, at first fired the only bullet available in the paltik given to him by
Bracamonte

(d) That although Barion had fallen and lost hold of his carrying lever, he was able to stand up immediately and
with a dagger continued attacking Alconga.

(e) That Alconga took his old rusty bolo to defend him-self against the dagger thrusts of Barion, while at the
same time stepping backwards until both reached the rice land, where Barion fell dead.
(f) That the wounds received by Barion, who was sturdier and of aggressive character, were inflicted on him by
Alconga while defending himself against the illegal aggression of Barion.

(g) That in view of the number of wounds received by Barion, it is most probable that Alconga continued being
blows with his bolo even after Barion was already unable to fight back.

(h) The theory of dividing the fight which took place in two stages, in the first one, Barion being the aggressor,
and in the second one, as the victim, finds no support in the evidence. It seems clear to us that the fight, from
the beginning to the end, was a continuous and uninterrupted occurrence. There is no evidence upon which to
base the proposition that there were two stages or periods in the incident, in such a way that we might be
allowed to conclude that in fact there were two fights.

The fact that Barion died with many wounds might be taken against appellant and may weaken the theory that
he acted only in legitimate self-defense. To judge, however, the conduct of appellant during the whole incident,
it is necessary to consider the psychology of a person engaged in a life or death struggle, acting under the
irresistible impulses of self-preservation and blinded by anger and indignation for the illegal aggression of
which he was the victim. A person placed in such a crucial situation must have to summon all his physiological
resources and physical forces to rally to the one and indivisible aim of survival and, to that end, placed his
energies on the level of highest pitch. In that moment of physical and spiritual hypertension, to ask that a man
should measure his acts as an architect would make measurements to achieve proportion and symmetry in a
proposed building or a scientist would make a calibration, so that his acts of self-defense should stop precisely
at the undeterminable border line when the aggressor ceases to be dangerous, is to ask the impossible.
Appellants conduct must be judged not by the standards which may be exacted from the supermen of the
future, if progressive evolution may happen to develop them. Appellants conduct can only be tested by the
average standards of human nature as we found it, which has many limitations and defects. If in trying to
eliminate an actual danger menacing his own existence, appellant was not able to moderate his efforts to destroy
that menace to the extent of actually killing his aggressor, he is certainly not accountable. He is not an angel. We
must judge him as a man, with its average baggage of faults and imperfections. After all, the aggressor ought to
know that he acted at his risk, and that by trying to kill a human being he defied fate, he gambled his own life.
Fate is always stronger than all its challengers. He who gambles with life, like all gamblers, in the end becomes
the loser.

Peace cannot remain undisturbed and justice cannot remain unchallenged unless all aggression is stopped.
individual or collective. A great number of human miseries are the, natural fruits of aggression. One of the
means of curving it is to give a conclusive notice to all aggressors, not only are they to pay very dearly for their
acts, but that the victims of their aggression are entitled, in self-defense, to avail themselves of even the most
devastating weapons. Those who allow themselves to run amuck in an aggression spree cannot complain
because the means of defense of the victims happen to be destructive. re may be some narrow-minded persons
who would hold illegal the use by the Americans of the atomic bomb to compel Japan to surrender. They must
be followers of philosophy of the sheep. We prefer to follow the principle of dynamic self-defense for the
innocent. Those who are bent on destroying human beings, must, before they able to achieve their diabolical
objective, be first destroyed. Those who were killed at Hiroshima and Nagasaki may appeal to our pity, but the
millions whose lives were spared by the prompt and spectacular ending of the war with the help of the atomic
energy, are entitled to justice, a justice which would have been denied them if Americans, swayed by
unreasonable feminine compunctions, should have abstained from using the weapon upon which were pinned
the hopes and salvation of those millions of innocent human beings. While those who cannot offend and the
defenseless may merit all our sympathy and kindness, those who constitute an actual menace to human life are
liable to be relentlessly crushed, until the last residuum of menace has been wiped out.

We vote to acquit appellant.

 SECOND DIVISION

G.R. No. 94643 February 21, 1992

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JOVITO CALLAO y CALLORA, FRUCTUOSO CALLORA, NARIA CALLAO (at large) and
SEGUNDINA CALLAO (at large), accused-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorneys Office for accused-appellants.

NOCON, J:

Subject of this appeal is the decision of the Regional Trial Court, Branch 30, Dumaguete City, in Criminal Case
No. 8668 entitled: "People vs. Jovito Callao y Callora, et. al.", convicting appellants, Jovito Callao and
Fructuoso Callao of the crime of murder under the information which reads:

That on or about March 28, 1989 at 5:30 o' clock in the afternoon, more or less, at barangay
Ilaya-Tayasan, Negros Oriental, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually helping one another, with
intent to kill, treachery and evident premeditation, did then and there, willfully, unlawfully and
feloniously waylay, assault, attack, stone, stab and wound one VICENTE AMISTOSO, with the
use of stones and a"plamingko" with which accused Jovito Callao was then armed and provided,
thus inflicting injuries to wit:

1. Contusion measuring 1 cm. wide 3 cm. long located at the right shoulder.

2. Abrasion measuring 1/2 cm. wide x 3 1/2 cm. long located at the left elbow
laterally.

3. Abrasion measuring 1/4 cm. wide x 2 cm. long located at the left elbow
posteriorly.

4. Abrasion measuring 1 1/2 cm. wide x 2 cm. long located at the left middle
portion of the leg anteriorly.

5. Abrasion measuring 1 cm. wide x 3 cm. (sic) long located at the right middle
portion of the leg laterally.

6. Abrasion measuring 1 cm. wide x 1 1/2 cm. (sic) long located at the distal
portion of the right leg laterally.

7. Stab wound measuring 1 cm. wide x 4 cm. (sic) long located at the left 5th
intercostal space along the mid-clavicular line penetrating the thoracic cavity.
 which caused victim's death immediately thereafter. 1

Only Fructuoso Callao and Jovito Callao were arraigned during which they entered a plea of ''NOT GUILTY".
The two other accused-appellants are still at large.

The facts of the case are as follows:

It was election day for barangay officials, March 28, 1989 when Ana Amistoso and husband Vicente Amistoso
(now deceased), were in the electoral polling place of barangay Ilaya in the town of Tayasan, Negros Oriental to
cast their vote. Accused Fructuoso Callao and Jovito Callao, father and son respectively, together with their
wives, were there too for the same purpose. Accused Fructuoso Callao left the precinct ahead of the Amistoso
couple, who left at around 5:30 that afternoon. Vicente Amistoso and his wife reached a place near the river
bank about 16 meters below their house which was on top of a hill, when they were suddenly met by the four
accused who immediately pelted Vicente with stones hitting him on various parts of his body, particularly on the
legs, on the left arm, on the shoulder, on the right cheek and at the back. Vicente tried to run away but in his
attempt, he stumbled to the ground as a result of which he was overtaken and stabbed by accused Jovito Callao
with a small bolo (plamingko) on the left chest causing his death. Dr. Julio L. Abella, Municipal Health Officer
of Ayungon, Negros Oriental, examined the dead body of Vicente and thereafter submitted his report. 2

Accused-appellants relying on self-defense and on defense of relative, advanced their own version of the facts
which are as follows:

Fructuoso Callao and Jovito Callao together with their respective wives were in the polling place in Ilaya,
Tayasan, Negros Oriental at 10:00 o'clock in the morning of March 28, 1989. In order to cast their vote during
the election of barangay officials being held on that day. The wives of Fructuoso and Jovito left the polling
place at 2:00 o'clock in the afternoon leaving their husbands behind. At about 5:30 that same afternoon, the two
accused, father and son, left for home. When they reached the portion of the road at the foot of the hill above
which the house of Vicente Amistoso was perched, they saw the latter, being held back by his wife, running
towards them carrying a stainless knife. Upon reaching the two accused, Vicente Amistoso immediately thrust
his knife at Jovito Callao which the latter parried, causing the knife to fall to a river nearby. The tip of the knife,
however, grazed Jovito's abdomen. Fructuoso then picked up the knife and used it in stabbing Vicente Amistoso
on the chest which resulted in the latter's death. Fructuoso and Jovito went home and there they were picked up
by the police authorities bringing with them the fatal knife.

Finding the version of the prosecution to be more credible, both accused were found guilty beyond reasonable
doubt of the crime of murder and each of them sentenced to suffer the penalty of reclusion perpetua with the
accessory penalties provided by law, and to jointly and severally indemnify the heirs of Vicente Amistoso in the
amount of Thirty Thousand (P30,000.00) Pesos and to pay the costs.

The accused-appellants assigned the following as errors of the lower court:

1. In not giving exculpatory weight to the evidence adduced by the defense.

2. In holding that there was conspiracy on the part of accused-appellants relative to the stabbing of the victim.

3. Assuming that accused-appellants are guilty, the trial court erred in a) convicting them of murder; and b) in
not considering the mitigating circumstance of voluntary surrender.

Fructuoso's testimony tried to show, among others, that when he first saw Vicente Amistoso at what he called
the "ambush" site or the scene of the incident, Vicente was being held back by his wife but was able to slip
away from his wife's hold causing him to stumble to the ground and roll 5 meters down the incline. When he
stopped rolling, Vicente stood up and thrust the knife at Jovito but the latter was able to hold the hand of Vicente
and twisted it causing the knife to fall. 3

Jovito's testimony however is that while he and his father were walking in a column, he saw Vicente Amistoso 8
meters away running towards them, carrying a "hunting knife" shouting, "Here Is the Barangay Tanod of the
stupid Barangay Captain (sic)." Then Vicente thrust his knife at Jovito, grazing Jovito's abdomen, and the latter
took hold with his two hands the hand of Vicente that was holding the knife and twisted it, causing the knife to
fall to the river. 4

It is difficult to ignore the inconsistency in the testimonies of both the accused. The testimony of Fructuoso
concentrated on the claim that Vicente stumbled to the ground after having freed himself from the hold of his
wife and rolled down the incline while Jovito claimed that Vicente was running continuously even after freeing
himself from his wife's hold.

Fructuoso's testimony shows that at the time of the confrontation with Vicente Amistoso he and co-accused
Jovito Callao were following a footpath on the opposite side of a small stream which is three feet wide and the
water less than a foot deep. They were between 80 to 100 meters from the house of Vicente Amistoso. He
further testified that he saw Vicente running down the incline towards their direction, holding a hunting knife,
shouting, "You have the same mind as that crazy Barangay Captain of yours." 5 However, what Jovito heard
Vicente was shouting while running towards them was, "Here comes the Barangay Tanod of the stupid
Barangay Captain (sic)," contrary to what Fructuoso said. 6

The foregoing shows that appellants were already alerted to Vicente Amistoso's alleged impending assault while
still far (80 meters) from them, and which, naturally, have put them on guard. Ordinarily, since neither of them
claimed not to have carried a weapon, they would have run away following the natural instinct of self-
preservation, or prepared themselves with any available means with which to successfully thwart the assault
considering their numerical superiority over Vicente. That Vicente was able to hit Jovito on the abdomen with
thrust of the knife on the basis of the facts mentioned is an improbable situation, one contrary to ordinary
human experience.

Furthermore, Fructuoso alleged that Vicente Amistoso was rolling on the ground up to about a fathom from
Jovito when he got up and stabbed Jovito. Considering Fructuoso's own testimony that from the house of
Vicente one had to cross a stream, about three feet wide, before reaching the footpath where they were at the
time, it is difficult to believe that Vicente had been rolling up to about a fathom from where Jovito was. By no
stretch of the imagination could that circumstance be perceived to have happened, even taking into account the
shallowness of the water.

Fructuoso's testimony that Jovito twisted Vicente's hand which was holding the knife causing the same to drop
two fathoms away into the water of the stream and which Vicente attempted to pick up but was beaten to it by
Fructuoso is highly incredible, considering that Fructuoso was two fathoms behind Jovito as testified to by him.
How then can Fructuoso have reached for the knife which was four fathoms away from him than Vicente who
was just two fathoms from said knife?

Finally, Fructuoso claimed that Vicente had no more weapon after he lost his knife and yet he still stabbed
Vicente with the knife hitting the latter on the left breast, and his reason for doing so was in "retaliation" for the
injury inflicted by Vicente on Jovito. When the knife fell off the hand of Vicente, following the line of the
evidence of the defense, and there was no showing that Vicente had another weapon other than said knife, he
was no longer a threat nor a danger to the lives and limbs of the two accused. There was nothing more to repel
or prevent by means of a knife. It is precisely the helpless condition of Vicente that Fructuoso took advantage of
by stabbing the former on the breast "in retaliation" and therefore, no longer in legitimate defense of his son.
Evidence shows that Vicente Amistoso sustained not only a stab wound on the chest but also six contusions and
abrasions on different parts of his
body, 7 thus giving sufficient corroboration to the prosecution witnesses' testimony that Vicente and his wife
were waylaid and then pelted with stones by Fructuoso Callao and Jovito Callao with the cooperation of their
respective wives. That the said wives left the polling place ahead of their respective husbands gave them the
opportunity to participate in the ambush of Vicente Amistoso.

It is worthwhile mentioning that the testimonies of father and son only dealt with the stab wound inflicted on
the deceased but there was no mention as to the contusions and abrasions found on the body of Vicente. To this,
no valid explanation was given by the defense.

As the evidence would show, the house of the Callaos were only about 750 meters from the polling place
towards the northwest while that of Vicente Amistoso was more than a kilometer away towards the east. The
incident happened, as the evidence would further show, between 80 to 100 meters from the house of the
deceased. That Fructuoso Callao and Jovito Callao were in the vicinity of the house of Vicente Amistoso at the
time of the incident when their own house could be reached ahead of that of Vicente is a circumstance
indicating that they were possibly waiting for someone for they had no legitimate reason being within the
vicinity of Vicente's house.

The information alleges conspiracy among all the accused which allegation has been sufficiently shown by the
evidence that Fructuoso Callao participated in pelting Vicente with stones until the latter fell to the ground after
which he was stabbed by Jovito on a vital spot of his body. 8 The attack on Vicente was treacherous for upon
reaching that place of the incident near their house, Vicente Amistoso was suddenly pelted with stones by
Fructuoso and Jovito together with their wives, forcing Vicente to run until he stumbled to the ground and
stabbed on the left chest by Jovito Callao. 9 Nothing can be more indicative of treachery than the conduct of the
two accused.

Appellants' claim of voluntary surrender as a mitigating circumstance in their favor does not deserve serious
consideration. For voluntary surrender to be appreciated, it is necessary that the same be spontaneous in such
manner as to show the intent of the accused to surrender unconditionally to the authorities, either because he
acknowledges his guilt or because he wishes to save them the trouble and expense incident to his search and
capture. 10 As found by the court a quo:

If Fructuoso Callao did in fact act in defense of his son, it is surprising why he did not surrender
to the authorities immediately after the incident and spontaneously give that statement to the
police. He instead went home with his son, Jovito, only to go to the Police Station upon being
apprehended by the police authorities. 11

PREMISES considered, the guilt of the appellants, Jovito Callao and Fructuoso Callao of the crime of murder,
as charged, has been proved beyond reasonable doubt.

WHEREFORE, the appealed decision is hereby AFFIRMED, and each of the accused-appellants sentenced to
suffer the penalty of RECLUSION PERPETUA and, to jointly and severally indemnify the heirs of Vicente
Amistoso in the amount of Fifty Thousand Pesos (P50,000.00). 12 Costs against appellants.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

13.