10/4/2017 PHILIPPINE REPORTS ANNOTATED VOLUME 046

[No. 18660. December 22, 1922]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and

appellee, vs. FELIPE DELIMA, defendant and appellant.

CRIMINAL LAW; HOMICIDE; PERFORMANCE OF A DUTY.

A policeman nds a fugitive from jail and demands his surrender. The
latter, instead of doing so, attacks the policeman with a piece of bamboo,
pointed in the shape of a lance. The policeman res his arm, but does not
hit him. The criminal runs away without parting with his weapon. The
policeman goes after him and again res against him, this time hitting
and killing him. Held; That the policeman did not commit any crime,
that that killing was done in the performance of a duty, and, therefore,
under article 8, No. 11, of the Penal Code, he must be acquitted.

APPEAL from a judgment of the Court of First Instance of Samar.

Capistrano, J.
The facts are stated in the opinion of the court.
Tancinco & Rosales for appellant.
Attorney-General Villa-Real for appellee.

739

VOL. 46, DECEMBER 29, 1922 739

People vs. Alcala

ROMUALDEZ, J.:

Lorenzo Napilon had escaped from the jail where he was serving
sentence.
Some days afterwards the policeman Felipe Delima, who was
looking f or him, f ound him in the house of Jorge Alegria, armed
with a pointed piece of bamboo in the shape of a lance, and
demanded his surrender. The f ugitive answered with a stroke of his
lance. The policeman dodged it, and to impose his authority red his
revolver, but the bullet did not hit him. The criminal ran away,
without parting with his weapon. The peace ofcer went after him
and red again his revolver, this time hitting and killing him.
The policeman was tried and convicted for homicide and
sentenced to reclusin temporal and the accessory penalties. He
appeals from that judgment which must be reversed.
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10/4/2017 PHILIPPINE REPORTS ANNOTATED VOLUME 046

That killing was done in the performance of a duty. The deceased

was under the obligation to surrender, and had no right, after
evading service of his sentence, to commit assault and disobedience
with a weapon in the hand, which compelled the policeman to resort
to such an extreme means, which, although it proved to be fatal, was
justied by the circumstances.
Article 8, No. 11, of the Penal Code being considered, Felipe
Delima committed no crime, and he is hereby acquitted with the
costs de ocio. So ordered.

Araullo, C. J., Street, Malcolm, Avancea, Villamor, Ostrand,

and Johns, JJ., concur.

Judgment reversed, defendant acquitted.

_______________

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