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Republic of the Philippines the door, opened on the porch.

the door, opened on the porch. Aside from the door and window, there were no other
SUPREME COURT openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had
EN BANC 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
G.R. No. L-5272 March 19, 1910 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
THE UNITED STATES, plaintiff-appellee, along the front of the porch, the room was very dark, and the defendant, fearing that
vs. the intruder was a robber or a thief, leaped to his feet and called out. "If you enter
AH CHONG, defendant-appellant. 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
Gibb & Gale, for appellant. confusion the defendant thought that the blow had been inflicted by the person who
Attorney-General Villamor, for appellee. 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
The evidence as to many of the essential and vital facts in this case is limited to the
porch and fell down on the steps in a desperately wounded condition, followed by
testimony of the accused himself, because from the very nature of these facts and
the defendant, who immediately recognized him in the moonlight. Seeing that
from the circumstances surrounding the incident upon which these proceedings rest,
Pascual was wounded, he called to his employers who slept in the next house, No.
no other evidence as to these facts was available either to the prosecution or to the
28, and ran back to his room to secure bandages to bind up Pascual's wounds.
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 There had been several robberies in Fort McKinley not long prior to the date of the
the record may be taken to be substantially correct: 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 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 The deceased and the accused, who roomed together and who appear to have on
house situates some 40 meters from the nearest building, and in August, 19087, was friendly and amicable terms prior to the fatal incident, had an understanding that
occupied solely as an officers' mess or club. No one slept in the house except the when either returned at night, he should knock at the door and acquiant his
two servants, who jointly occupied a small room toward the rear of the building, the companion with his identity. Pascual had left the house early in the evening and
door of which opened upon a narrow porch running along the side of the building, gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants
by which communication was had with the other part of the house. This porch was employed at officers' quarters No. 28, the nearest house to the mess hall. The three
covered by a heavy growth of vines for its entire length and height. The door of the returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at
room was not furnished with a permanent bolt or lock, and occupants, as a measure their room at No. 28, Pascual going on to his room at No. 27. A few moments after
of security, had attached a small hook or catch on the inside of the door, and were the party separated, Celestino and Mariano heard cries for assistance and upon
in the habit of reinforcing this somewhat insecure means of fastening the door by returning to No. 27 found Pascual sitting on the back steps fatally wounded in the
placing against it a chair. In the room there was but one small window, which, like 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 his fatal blow, if the intruder who forced open the door of his room had been in fact
that he did it under the impression that Pascual was "a ladron" because he forced a dangerous thief or "ladron," as the defendant believed him to be. No one, under
open the door of their sleeping room, despite defendant's warnings. 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
No reasonable explanation of the remarkable conduct on the part of Pascuals thrice-repeated warning to desist, and his threat that he would kill the intruder if he
suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on persisted in his attempt, it will not be questioned that in the darkness of the night, in
his Chinese roommate, and sought to frightened him by forcing his way into the a small room, with no means of escape, with the thief advancing upon him despite
room, refusing to give his name or say who he was, in order to make Ah Chong his warnings defendant would have been wholly justified in using any available
believe that he was being attacked by a robber. 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.
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. 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
The defendant was charged with the crime of assassination, tried, and found guilty in real danger at the time when he struck the fatal blow. That there was no such
by the trial court of simple homicide, with extenuating circumstances, and sentenced "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was
to six years and one day presidio mayor, the minimum penalty prescribed by law. 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.
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 The question then squarely presents it self, whether in this jurisdiction one can be
a wrongful act, in the exercise of his lawful right of self-defense. 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
Article 8 of the Penal Code provides that — 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
The following are not delinquent and are therefore exempt from criminal this question we think there can be but one answer, and we hold that under such
liability: circumstances there is no criminal liability, provided always that the alleged
ignorance or mistake or fact was not due to negligence or bad faith.
xxx xxx xxx
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
4 He who acts in defense of his person or rights, provided there are the
ingredient of the offense charged (e.g., in larcerny, animus furendi; in murder,
following attendant circumstances:
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
(1) Illegal aggression. 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
(2) Reasonable necessity of the means employed to prevent or repel it. 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
(3) Lack of sufficient provocation on the part of the person defending and cases cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex.
himself. 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.)
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
The general proposition thus stated hardly admits of discussion, and the only Acts and omissions punished by law are always presumed to be voluntarily
question worthy of consideration is whether malice or criminal intent is an essential unless the contrary shall appear.
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 An person voluntarily committing a crime or misdemeanor shall incur
these as well as most other crimes and offense therein defined, do not specifically criminal liability, even though the wrongful act committed be different from
and expressly declare that the acts constituting the crime or offense must be that which he had intended to commit.
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 The celebrated Spanish jurist Pacheco, discussing the meaning of the word
subjects the actor to the penalties described therein, unless it appears that he is "voluntary" as used in this article, say that a voluntary act is a free, intelligent,
exempted from liability under one or other of the express provisions of article 8 of and intentional act, and roundly asserts that without intention (intention to do wrong
the code, which treats of exemption. But while it is true that contrary to the general or criminal intention) there can be no crime; and that the word "voluntary" implies
rule of legislative enactment in the United States, the definitions of crimes and and includes the words "con malicia," which were expressly set out in the definition
offenses as set out in the Penal Code rarely contain provisions expressly declaring of the word "crime" in the code of 1822, but omitted from the code of 1870, because,
that malice or criminal intent is an essential ingredient of the crime, nevertheless, as Pacheco insists, their use in the former code was redundant, being implied and
the general provisions of article 1 of the code clearly indicate that malice, or criminal included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
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 Viada, while insisting that the absence of intention to commit the crime can only be
those touching liability resulting from acts negligently or imprudently committed, said to exempt from criminal responsibility when the act which was actually
and acts done by one voluntarily committing a crime or misdemeanor, where the act intended to be done was in itself a lawful one, and in the absence of negligence or
committed is different from that which he intended to commit. And it is to be imprudence, nevertheless admits and recognizes in his discussion of the provisions
observed that even these exceptions are more apparent than real, for "There is little of this article of the code that in general without intention there can be no crime.
distinction, except in degree, between a will to do a wrongful thing and indifference (Viada, vol. 1, p. 16.) And, as we have shown above, the exceptions insisted upon
whether it is done or not. Therefore carelessness is criminal, and within limits by Viada are more apparent than real.
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 Silvela, in discussing the doctrine herein laid down, says:
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
In fact, it is sufficient to remember the first article, which declared that
disposition to do harm, which the criminal shows by committing it, and since this
where there is no intention there is no crime . . . in order to affirm, without
disposition is greater or less in proportion to the harm which is done by the crime,
fear of mistake, that under our code there can be no crime if there is no act,
the consequence is that the guilt of the crime follows the same proportion; it is
an act which must fall within the sphere of ethics if there is no moral injury.
greater or less according as the crime in its own nature does greater or less harm"
(Vol. 2, the Criminal Law, folio 169.)
(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. 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
Article 1 of the Penal Code is as follows:
It is necessary that this act, in order to constitute a crime, involve all the
Crimes or misdemeanors are voluntary acts and ommissions punished by
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, The word "voluntary" as used in article 1 of the Penal Code would seem to
whatever may be the civil effects of the inscription of his three sons, made by the approximate in meaning the word "willful" as used in English and American statute
appellant in the civil registry and in the parochial church, there can be no crime to designate a form of criminal intent. It has been said that while the word "willful"
because of the lack of the necessary element or criminal intention, which sometimes means little more than intentionally or designedly, yet it is more
characterizes every action or ommission punished by law; nor is he guilty of criminal frequently understood to extent a little further and approximate the idea of the milder
negligence." 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"
And to the same effect in its sentence of December 30, 1896, it made use of the or "causelessly;" in another, "without reasonable grounds to believe the thing
following language: 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
. . . Considering that the moral element of the crime, that is, intent or malice American statutes defining crimes "malice," "malicious," "maliciously," and
or their absence in the commission of an act defined and punished by law as "malice aforethought" are words indicating intent, more purely technical than
criminal, is not a necessary question of fact submitted to the exclusive "willful" or willfully," but "the difference between them is not great;" the word
judgment and decision of the trial court. "malice" not often being understood to require general malevolence toward a
particular individual, and signifying rather the intent from our legal justification.
That the author of the Penal Code deemed criminal intent or malice to be an essential (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
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: 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"
He who shall execute through reckless negligence an act that, if done with "with malice aforethought," or in one of the various modes generally construed to
malice, would constitute a grave crime, shall be punished with the penalty imply a criminal intent, we think that reasoning from general principles it will
of arresto mayor in its maximum degree, to prision correccional in its always be found that with the rare exceptions hereinafter mentioned, to constitute a
minimum degrees if it shall constitute a less grave crime. 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:
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 In no one thing does criminal jurisprudence differ more from civil than in
medium and maximum degrees. 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
In the application of these penalties the courts shall proceed according to crime proceeds only from a criminal mind. So that —
their discretion, without being subject to the rules prescribed in article 81.
There can be no crime, large or small, without an evil mind. In other words,
The provisions of this article shall not be applicable if the penalty prescribed punishment is the sentence of wickedness, without which it can not be. And
for the crime is equal to or less than those contained in the first paragraph neither in philosophical speculation nor in religious or mortal sentiment
thereof, in which case the courts shall apply the next one thereto in the would any people in any age allow that a man should be deemed guilty
degree which they may consider proper. 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
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.
Legal maxims. — The ancient wisdom of the law, equally with the modern, always held that unless the intention of the lawmaker to make the commission of
is distinct on this subject. It consequently has supplied to us such maxims certain acts criminal without regard to the intent of the doer is clear and beyond
as Actus non facit reum nisi mens sit rea, "the act itself does not make man question the statute will not be so construed (cases cited in Cyc., vol. 12, p. 158,
guilty unless his intention were so;" Actus me incito factus non est meus notes 76 and 77); and the rule that ignorance of the law excuses no man has been
actus, "an act done by me against my will is not my act;" and others of the said not to be a real departure from the law's fundamental principle that crime exists
like sort. In this, as just said, criminal jurisprudence differs from civil. So only where the mind is at fault, because "the evil purpose need not be to break the
also — 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.)
Moral science and moral sentiment teach the same thing. "By reference to
the intention, we inculpate or exculpate others or ourselves without any But, however this may be, there is no technical rule, and no pressing necessity
respect to the happiness or misery actually produced. Let the result of an therefore, requiring mistake in fact to be dealt with otherwise that in strict accord
action be what it may, we hold a man guilty simply on the ground of with the principles of abstract justice. On the contrary, the maxim here is Ignorantia
intention; or, on the dame ground, we hold him innocent." The calm facti excusat ("Ignorance or mistake in point of fact is, in all cases of supposed
judgment of mankind keeps this doctrine among its jewels. In times of offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)
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 Since evil intent is in general an inseparable element in every crime, any such
voice that where the mind is pure, he who differs in act from his neighbors mistake of fact as shows the act committed to have proceeded from no sort of evil
does not offend. And — 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
In the spontaneous judgment which springs from the nature given by God guilt of the accused must depend on the circumstances as they appear to him."
to man, no one deems another to deserve punishment for what he did from (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson, 44 Cal.., 65; P. vs. Lamb, 54
an upright mind, destitute of every form of evil. And whenever a person is Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625;
made to suffer a punishment which the community deems not his due, so far Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28
from its placing an evil mark upon him, it elevates him to the seat of the Tex. Ap., 387.) That is to say, the question as to whether he honestly, in good faith,
martyr. Even infancy itself spontaneously pleads the want of bad intent in and without fault or negligence fell into the mistake is to be determined by the
justification of what has the appearance of wrong, with the utmost circumstances as they appeared to him at the time when the mistake was made, and
confidence that the plea, if its truth is credited, will be accepted as good. the effect which the surrounding circumstances might reasonably be expected to
Now these facts are only the voice of nature uttering one of her immutable have on his mind, in forming the intent, criminal or other wise, upon which he acted.
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 If, in language not uncommon in the cases, one has reasonable cause to
be punished as a criminal unless his intent is wrong. (Bishop's New Criminal believe the existence of facts which will justify a killing — or, in terms more
Law, vol. 1, secs. 286 to 290.) 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
Compelled by necessity, "the great master of all things," an apparent departure from homicide; though he mistook the facts, and so the life of an innocent person
this doctrine of abstract justice result from the adoption of the arbitrary rule is unfortunately extinguished. In other words, and with reference to the right
that Ignorantia juris non excusat ("Ignorance of the law excuses no man"), without of self-defense and the not quite harmonious authorities, it is the doctrine of
which justice could not be administered in our tribunals; and compelled also by the reason and sufficiently sustained in adjudication, that notwithstanding some
same doctrine of necessity, the courts have recognized the power of the legislature decisions apparently adverse, whenever a man undertakes self-defense, he
to forbid, in a limited class of cases, the doing of certain acts, and to make their is justified in acting on the facts as they appear to him. If, without fault or
commission criminal without regard to the intent of the doer. Without discussing carelessness, he is misled concerning them, and defends himself correctly
these exceptional cases at length, it is sufficient here to say that the courts have 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 such doctrine must require that a man so attacked must, before he strikes the
the extreme measures. (Bishop's New Criminal Law, sec. 305, and large assailant, stop and ascertain how the pistol is loaded — a doctrine which
array of cases there cited.) 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
The common illustration in the American and English textbooks of the application judge of the reasonable grounds of his apprehension, no danger can be
of this rule is the case where a man, masked and disguised as a footpad, at night and supposed to flow from this principle. (Lloyd's Rep., p. 160.)
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 To the same effect are various decisions of the supreme court of Spain, cited by
that the attack is a real one, that the pistol leveled at his head is loaded, and that his Viada, a few of which are here set out in full because the facts are somewhat
life and property are in imminent danger at the hands of the aggressor. No one will analogous to those in the case at bar.
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, QUESTION III. When it is shown that the accused was sitting at his hearth,
although if he knew the real state of the facts when he took the life of his friend he at night, in company only of his wife, without other light than reflected from
would undoubtedly be guilty of the crime of homicide or assassination. Under such the fire, and that the man with his back to the door was attending to the fire,
circumstances, proof of his innocent mistake of the facts overcomes the presumption there suddenly entered a person whom he did not see or know, who struck
of malice or criminal intent, and (since malice or criminal intent is a necessary him one or two blows, producing a contusion on the shoulder, because of
ingredient of the "act punished by law" in cases of homicide or assassination) which he turned, seized the person and took from his the stick with which
overcomes at the same time the presumption established in article 1 of the code, that he had undoubtedly been struck, and gave the unknown person a blow,
the "act punished by law" was committed "voluntarily." 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
Parson, C.J., in the Massachusetts court, once said: 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
If the party killing had reasonable grounds for believing that the person slain in consequence of cerebral congestion resulting from the blow. The accused,
had a felonious design against him, and under that supposition killed him, who confessed the facts, had always sustained pleasant relations with his
although it should afterwards appear that there was no such design, it will father-in-law, whom he visited during his sickness, demonstrating great
not be murder, but it will be either manslaughter or excusable homicide, grief over the occurrence. Shall he be considered free from criminal
according to the degree of caution used and the probable grounds of such responsibility, as having acted in self-defense, with all the circumstances
belief. (Charge to the grand jury in Selfridge's case, Whart, Hom., 417, 418, related in paragraph 4, article 8, of the Penal Code? The criminal branch of
Lloyd's report of the case, p.7.) the Audiencia of Valladolid found that he was an illegal aggressor, without
sufficient provocation, and that there did not exists rational necessity for the
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows: 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
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, accessory penalty and costs. Upon appeal by the accused, he was acquitted
with an outstretched arms and a pistol in his hand, and using violent menaces by the supreme court, under the following sentence: "Considering, from the
against his life as he advances. Having approached near enough in the same facts found by the sentence to have been proven, that the accused was
attitude, A, who has a club in his hand, strikes B over the head before or at surprised from behind, at night, in his house beside his wife who was
the instant the pistol is discharged; and of the wound B dies. It turns out the nursing her child, was attacked, struck, and beaten, without being able to
pistol was loaded with powder only, and that the real design of B was only distinguish with which they might have executed their criminal intent,
to terrify A. Will any reasonable man say that A is more criminal that he because of the there was no other than fire light in the room, and considering
would have been if there had been a bullet in the pistol? Those who hold 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 delivery of all of his money, otherwise his house would be burned" —
himself, and in doing so with the same stick with which he was attacked, he because of which, and observing in an alley adjacent to the mill four
did not exceed the limits of self-defense, nor did he use means which were individuals, one of whom addressed him with blasphemy, he fired his pistol
not rationally necessary, particularly because the instrument with which he at one the men, who, on the next morning was found dead on the same spot.
killed was the one which he took from his assailant, and was capable of Shall this man be declared exempt from criminal responsibility as having
producing death, and in the darkness of the house and the consteration which acted in just self-defense with all of the requisites of law? The criminal
naturally resulted from such strong aggression, it was not given him to branch of the requisites of law? The criminal branch of the Audiencia of
known or distinguish whether there was one or more assailants, nor the arms Zaragoza finds that there existed in favor of the accused a majority of the
which they might bear, not that which they might accomplish, and requisites to exempt him from criminal responsibility, but not that of
considering that the lower court did not find from the accepted facts that reasonable necessity for the means, employed, and condemned the accused
there existed rational necessity for the means employed, and that it did not to twelve months of prision correctional for the homicide committed. Upon
apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of appeal, the supreme court acquitted the condemned, finding that the
supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) . 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
QUESTION XIX. A person returning, at night, to his house, which was of his person, property, and family. (Sentence of May 23, 1877). (I Viada,
situated in a retired part of the city, upon arriving at a point where there was p. 128.)
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 A careful examination of the facts as disclosed in the case at bar convinces us that
same money, he fired two shots from his pistol, distinguishing immediately the defendant Chinaman struck the fatal blow alleged in the information in the firm
the voice of one of his friends (who had before simulated a different voice) belief that the intruder who forced open the door of his sleeping room was a thief,
saying, "Oh! they have killed me," and hastening to his assistance, finding from whose assault he was in imminent peril, both of his life and of his property and
the body lying upon the ground, he cried, "Miguel, Miguel, speak, for God's of the property committed to his charge; that in view of all the circumstances, as
sake, or I am ruined," realizing that he had been the victim of a joke, and they must have presented themselves to the defendant at the time, he acted in good
not receiving a reply, and observing that his friend was a corpse, he retired faith, without malice, or criminal intent, in the belief that he was doing no more than
from the place. Shall he be declared exempt in toto from responsibility as exercising his legitimate right of self-defense; that had the facts been as he believed
the author of this homicide, as having acted in just self-defense under the them to be he would have been wholly exempt from criminal liability on account of
circumstances defined in paragraph 4, article 8, Penal Code? The criminal his act; and that he can not be said to have been guilty of negligence or recklessness
branch of the Audiencia of Malaga did not so find, but only found in favor or even carelessness in falling into his mistake as to the facts, or in the means adopted
of the accused two of the requisites of said article, but not that of the by him to defend himself from the imminent danger which he believe threatened his
reasonableness of the means employed to repel the attack, and, therefore, person and his property and the property under his charge.
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, The judgment of conviction and the sentence imposed by the trial court should be
holding that the accused was acting under a justifiable and excusable reversed, and the defendant acquitted of the crime with which he is charged and his
mistake of fact as to the identity of the person calling to him, and that under bail bond exonerated, with the costs of both instance de oficio. So ordered.
the circumstances, the darkness and remoteness, etc., the means employed
were rational and the shooting justifiable. (Sentence supreme court, March Johnson Moreland and Elliott, JJ., concur.
17, 1885.) (Viada, Vol. I, p. 136.) Arellano, C.J., and Mapa, J., dissent.

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
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

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.
Republic of the Philippines Q. Why did you not shout before shooting? — A. I had no time because the
SUPREME COURT man was already near, when I saw that black figure with uplifted arms
Manila behind a pillar, and fearing he would attack me with his kampilan or dagger,
I shot him before he would kill me.
Q. Why did you think that black figure was an outlaw? — A. Because my
G.R. No. L-29481 October 31, 1928 wife screamed that there were evildoers below, and in our place ther are
many outlaws, and those outlaws hate me because I help the Government to
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, collect taxes. Some days before, there was killing near my house, a soldier
vs. killing two outlaws.
PAMBAYA BAYAMBAO, defendant-appellant.
Q. After you had fired at that black figure, what did you do? — A. After
Gullas, Misa, Gullas and Tuano for appellant. having fired, I waited a moment to see if he had other outlaw companions,
Attorney-General Jaranilla for appellee. and I was prepared to go up and get my gun. As I did not see anybody else,
I cried out, "Brother-in-law, come down, Imo, bring a light." At that Imo
and Morid came down with a light and we discovered that the person who
was moaning was my brother- in-law. Upon seeing him I ran towards him,
embracing and kissing him, saying: "Forgive me, I thought you were an
ROMUALDEZ, J.: outlaw," and he answered: "And I also thought you were an outlaw." (Pages
33-34, t.s.n.)
Pambaya Bayambao was charged with the crime of murder, was found guilty thereof
by the Court of First Instance of Lanao and sentenced to twenty years' cadena The wife of the victim gives another version of the occurrence. She testified that
temporal, the accessories of law, costs and to indemnify the heirs of the deceased in when the accused's wife informed him that someone had thrown a stone at the house,
the sum of P1,000. the accused suggested that the deceased go down and see who was throwing stones
at them; that the deceased went down and told the accused that there was no one
under the house; that thereupon the accused, telling him to wait there for he was
He does not deny having caused the deceased's death. He alleges, however, that he
going to use his flashlight, went down carrying an automatic revolver in his right
did it by mistake, believing the deceased malefactor who attacked him in the dark.
hand and a flashlight in the left; that, on coming downstairs the accused asked the
He thus related the occurence:
deceased if the hens there belonged to him, and the latter asked the accused to focus
his light there in order to gather all the hens together; that at this the accused shot
A. While my wife was cooking she called out to me saying, "Pambaya, the deceased, whose wife peered out of the door and saw her husband with the
Pambaya, someone has thrown a stone at the house." So I took my revolver accused focusing his flashlight on him and then firing at him again; that the deceased
and went down. Having gone under the house, I looked around, but did not told Pambaya that he was wounded; that the deceased's wife upbraided the accused
see anybody; however, I did not go far because I was alone. Then, while I telling him that he did wrong, and asked why he had shot the deceased; that the
was near the staircase, about to ascend, I heard a noise and saw a black accused turned upon her telling her to shut up or he would shoot her also.
figure that rushed at me, with hands lifted up as if to strike me, and becoming
frightened, I fired at it. 1awph!l.net
Morid, widow of the deceased, is the only witness testifying to these facts. Her
testimony is uncorroborated. The alleged ante-mortem declaration contained in the
Q. Why did you shoot him? — A. Because I thought he was an outlaw and document Exhibit B, is of doubtful authenticity, because, while the justice of the
he also thought that I was another outlaw, but found out later that it was my peace and the witness Urunaga state that such statement was made by the deceased,
Constabulary Lieutenant Cramer, who arrived at where the deceased was a few The judgment appealed from is reversed and the appellant acquitted, with costs de
moments before said justice of the peace positively states that the deceased could no officio, and the other pronouncements in his favor. So ordered.
longer speak. Consequently, he could not very well have the alleged statement. Of
Course, it appears that it was not the deceased who wrote it, but Urunaga, and upon Avancena, C.J., Johnson, Street, Malcolm, Villamor, Ostrand and Villa-Real, JJ.,
a typewriter. It does not appear that the deceased read it or that it was read to him, Concur.
or that the deceased acknowledge it as his own statement. This proof of identity is
indispensible for the admissibility of such an ante-mortem declaration as evidence. Republic of the Philippines
(People vs. Dizon, 44 Phil., 267.) We cannot give any probatory value to document SUPREME COURT
Exhibit B. Manila

Alone and uncorroborated, therefore, stands the testimony of Morid, which, besides EN BANC
being incongruous in parts, is flatly and shoutly denied by the accused and his wife.
Considering the circumstances of the case, it is very improbable that, without a G.R. No. 424 January 27, 1902
previous dispute or even an exchange of words, the accused should suddenly and
unexpectedly attack the deceased. The disagreement that, according to the latter's THE UNITED STATES, complainant-appellee,
widow, arose between the accused and the deceased ten days before the incident, vs.
has not been proven in the record, and it is inconsistent with the conduct of the two MARCOSA PEÑALOSA and ENRIQUE RODRIGUEZ, defendants-
during the subsequent days up to time of the incident, with both living peacefully appellants.
and sleeping together in the same house on the night in question, a few moments
before the occurrence, according to the testimony of Morid herself.
Francisco Rodriguez, for appellants.
Alfredo Chicote, for private prosecutor.
On the other hand, the accused's narration seems natural. And as it is corroborated
not only by his wife's testimony, but on some points by that of Lieutenant Cramer
and Sergeant Tumindog, to the effect that immediately after the occurrence the
accused betook himself to the commanding officer of the place in order to give an
account of the incident, and to ask for prompt medical help for his unexpected Article 475 of the prevailing Penal Code provides as follows:
victim, it cannot but produce in the mind a conviction that what happened to the
unfortunate Mangutara was an accident, without fault or guilt on the part of the Any minor who shall contract marriage without the consent of his or her
herein appellant. parents or of the persons who for such purpose stand in their stead shall be
punished with prision correccional in its minimum and medium degrees.
The latter, on that occasion, acted from the impulse of an uncontrollable fear of an
ill at least equal in gravity, in the belief that the deceased was a malefactor who The accused were convicted in the lower court for the violation of this article, it
attacked him with a kampilan or dagger in hand, and for this reason, he was guilty appearing from the evidence adduced that the accused, Marcosa Peñalosa, was not
of no crime and is exempt from criminal liability (art. 8, No. 10, Penal Code.) 21 years of age on the 3rd day of May, 1901, when she married the codefendant,
and that she contracted the marriage without the consent of her father.
Furthermore, his ignorance or error of fact was not due to negligence or bad faith,
and this rebuts the presumption of malicious, intent accompanying the act of killing. Should the judgment appealed from be affirmed if the woman was in fact less than
In an case, this court acquitted the accused (U.S. vs. Ah Chong, 15 Phil., 488), and 21 years of age, without taking into consideration what was her belief concerning
we deem the doctrine laid down in that case applicable to this one. her age? Many instances can be called to mind in which there may exist an error in
good faith concerning this point. A man who is about to marry and is ignorant of
his exact age seeks and obtains a certified copy of the registry of his baptism. From
this it appears that he was born twenty-one years before the 1st day of June, let us on account of his ignorance and lack of instruction, on the 27th of June, 1882, and
say. He marries on the 15th day of June. It develops later that the person who took the 5th of April, 1884, in the municipal court of the pueblo of Polopos he
the copy of the registry of baptism read July as June, and as a matter of fact the registered as legitimate children his sons, Jose and Emilio the offspring of the
man in question did not complete his twenty-one years until the 1st day of July, illicit union of the defendant and Leonor Gonzalez." For the crime of falsity
fifteen days after his marriage. Can such a one be convicted of a violation of article committed by reckless negligence the Criminal Audiencia of Albunol condemned
475? It would seem that this case is included within those of the article. He was in the said defendant to the penalty of four months and one day of arresto mayor. The
fact a minor when he married, and he married without the consent of his parents. It Supreme Court annulled said sentence "considering that whatever might be the
is true that so far as the parent is concerned the offense has been committed, but civil effects of the registration of his three sons entered by the accused in the Civil
can the same be said with reference to the State in the absence of a voluntary and Parochial Registers, it can not partake of the nature of a crime for lack of the
violation of the law? Article 1 of the Code does not contain the word "with malice" necessary element of volition or intent to offend, essential to every punishable act
that are to be found in the Code of 1822; nevertheless Pacheco, the eminent or omission; neither did he act with negligence." (Judgment of March 16, 1892.)
commentator, has said that those words are included in the word "voluntary" (El
Codigo Penal Concordado y Comentado, Vol. I, folio 74, third edition); and he In a cause prosecuted against the Chinese Sy-Ticco and against Don Guillermo
states positively that crime can not exist without intent. Partier, in the court of Quiapo, for falsification of trade-marks, the Criminal
Chamber of the Audiencia of Manila condemned the Chinaman to two years and
Other commentators, without being in entire conformity with Pacheco, some months of presidio correccional, and Partier to one year and some months of
nevertheless are agreed up to a certain point. Groizard says: "Such is the general similar imprisonment. A writ of error was sued out in the name of Partier. The
rule; so it is ordinarily." (Codigo Penal de 1870, Vol. I, folio 37.) Viada says that Supreme Court annulled this sentence, "considering that the moral element of the
"in the majority of cases, in the absence of intent there has been no crime; but that crime, or, in other words, existence or nonexistence of intent and malice in the
there can exist in some cases the latter without the former." (Vol. I, Codigo Penal commission of an act designated and punished by the law as criminal is essentially
Reformado de 1870, folio 16.) Silvela says: "In effect if suffices to remember the a question of fact for the exclusive judgment and determination of the trial court."
first article, which states that where there is no intent there is no crime, ... in order
to assert without fear or mistake that in our Code the substance of a crime does not Considering that the act charged against the accused, Guillermo Partier, of
exist if there is not a deed, an act which falls within the sphere of ethics, if there is having printed in his lithographic establishment the trade-mark of the
not a moral wrong." (Vol. 2, Derecho Penal, folio 169.) cigarette packages of the Insular factory by virtue of a supposed order of
the owner of said factory, to whose injury the Chinaman Abelardo
The theory that the absence of the words "with malice" in the prevailing Code has Zacarias Sy-Ticco ordered him to do the said fraudulent printing, can not
this effect is supported by the provisions of article 568 which says: "He who by be considered (from the facts declared proved in the final sentence of
reckless negligence commits an act which would constitute a grave crime if malice acquittal of the Court of First Instance, accepted in its entirety and without
were present shall be punished," etc. any addition by the Appellate Court) as constituting intentional
participation or cooperation in deed of falsification and defraudation
The Supreme Court in several successive sentences has followed the same committed by the former, since it does not appear in any part of the
doctrine: "It is indispensable that this (action) in order to constitute a crime should sentence that Partier was in connivance with Sy-Ticco nor that he had any
carry with it all the malice which the volition and intention to cause the evil which reason to suspect the true character of him who, styling himself the
may be the object of the said crime suppose. (Judgment of May 31, 1882.) representative of Señor Santa Marina, the owner of the La Insular factory,
gave him the order to print the trade-mark of this factory on the packages,
In a cause for falsity the facts involved were that the defendant had married which were to be used to hold cigarettes. (Judgment of December 30,
"before the municipal judge of the pueblo of Rubete without other ceremony than 1896.)
the simple manifestation and expression of his wishes and those of the woman
Leonor with whom he married before said municipal judge; that relying upon that, The judgment of October 4, 1893, is of the same tenor. It is not necessary to hold
in this action that no crime mentioned in the Code can exist without intent. It
suffices for the present to decide, as we do decide, that one can not be convicted Arellano, C.J., Cooper, Torres, and Mapa, JJ., concur.
under article 475 when by reason of a mistake of fact there does not exist the Ladd, J., did not sit in this case.
intention to commit the crime.

It remains for us to apply this principle to the facts of the present case. The
defendant has stated that she believed that she was born in 1879; that so her
parents had given her to understand ever since her tenderest age; that she had not
asked them concerning her age because her father had given her to so understand
since her childhood. Her father was present in the court room as the complaining
witness. If his daughter was deviating from the truth it would have been an easy
matter for him to have testified denying the truth of what she had stated. It is
evident that he was interested in the conviction of his daughter, and the fact that
the complaining witness did not contradict her obliges us to accept as true the
statements of the witness. Being true, they disclose that she acted under a mistake
of fact; that there was no intention on her part to commit the crime provided for
and punished the article 475.

As for the husband, it has been proved that two days before the marriage was
celebrated he received a letter from the woman in which she said that she was 21
years of age. This letter the defendant showed to the clergyman who married them.
The woman when the marriage ceremony was performed took an oath before the
clergyman, in the presence of her husband, that she was 21 years of age. The
defendant testifies that he had no suspicion that the woman was a minor. This
statement has not been contradicted and we consider that it suffices to demonstrate
that the defendant acted under a mistake of fact, and in conformity with the
principle laid down in this opinion he has not been guilty of a violation of article
475 in connection with article 13, No. 3, nor in any other manner.

The conviction of the defendants in accordance with article 568, together with
article 29 of General Orders, No. 58, has not been prayed for, and even if it had
been we do not consider the evidence sufficient to sustain a conviction in
accordance with this article. Her husband has the right to accept the sworn
statement of the woman. The only person whom she could ask for information was
her father, and he had told her age repeatedly.

For the reasons above set forth the sentence of the lower court is reversed with
reference to both defendants, acquitting them freely with costs of suit de oficio.

It is so ordered.
Republic of the Philippines saying: "What! have you arrive already?" and at once got up in front of the said
SUPREME COURT spouses; at this moment Maria advised her to cogitate and reflect, but Genoveva
Manila immediately ran out of the house, asking for help; it was then that the wife noticed
that her husband was seriously wounded, and when he was afterwards examined by
EN BANC a physician it was ascertained that he bore a downward, penetrating wound, in the
shape of a T, in the intercostal space between the second and third ribs of the left
side, that it reached one of the lungs and the heart, was necessarily fatal, and was
inflicted with a sharp-pointed, cutting instrument. A few moments after its infliction
G.R. No. L-7929 November 18, 1912 the injured man died.

THE UNITED STATES, plaintiff-appellee, By reason of the foregoing, an information was filed in the Court of First Instance
vs. of Batangas, on January 8, 1912, by the provincial fiscal, charging Genoveva Apego
GENOVEVA APEGO, defendants-appellant. with the crime of murder, and upon the institution of this case the aforementioned
judgment was rendered.
Tirso de Irureta Goyena, for appellant.
Attorney-General Villamor, for appellee. We accept the classification of homicide given by the trial judge to the facts
involving the violent death of Pio Bautista, since, in the commission of the crime, it
does not appear that there was present any of the qualifying circumstance that
determine a more serious crime and penalty.

TORRES, J.: It is unquestionable and beyond all doubt that Genoveva Apego, un unmarried
woman of about 25 years of age, inflicted upon the deceased with a pocketknife a
serious wound of a necessarily mortal nature, for he died shortly afterwards between
This case comes to us on appeal from a judgment of February 15, 1912, by which
the second and third ribs of the same side from an upper toward a lower and an
the Honorable Mariano Cui, judge, sentenced the appellant to the penalty of twelve
outward toward an inner direction and reached the heart and one of the lungs.
years and one day of reclusion temporal, to the accessories, to pay an indemnity of
P1,000 to the heirs of the deceased, and the costs.
The record does not show whether the deceased was able to make any ante-
mortem statement, nor does it appear to have been ascertained what was the motive
At about 8 o'clock in the evening of December 24, 1911, the spouses, Pio Bautista
of the fatal aggression of which the said Pio Bautista was the victim.
and Maria Apego, coming from the municipality of Nasugbu, returned to their
house, situated in the barrio of Sampaga, pueblo of Balayan, Batangas, and before
entering the same called to Genoveva Apego, the woman's sister, who they knew The following conclusions of fact are derived from a careful study of this case: upon
was therein, and as they received no reply, went up into the house; the husband led the arrival of Maria Apego and her husband, Pio Bautista, at the stairs of their house,
the way and opened the door; he was followed by band led the way and opened the and as Genoveva Apego did not reply to the call made to her from the outside by her
door; he was followed by his wife who, once inside, lit a match and then a small sister Maria, the said spouses went to the upper floor of the house; Bautista led the
kerosene lamp there was in the house. In the meantime the husband approached the way and, in order to enter, opened the outside door, a sliding door, and as there was
place where Genoveva was, who, startled, immediately awoke, seized a pocketknife no light inside stumbled against Genoveva Apego, who was sleeping near the said
used in spinning hemp, which was in a box at her side, and with it attacked and door, and touched her left arm; thereupon, Genoveva awoke and believing, as she
struck Bautista, who was near her, a blow in the breast; thereupon her sister Maria, testified, that somebody was trying to abuse her, seized the pocketknife
who was not aware of the aggression, asked Genoveva why empty tincans and other aforementioned, asking at the same time who was beside her, and as she did not
articles were scattered about the azotea of the house, to which Genoveva replied by receive a reply immediately, she got up and struck the person before her a blow with
the said knife; in the meanwhile Maria Apego had separated from her husband to caught her by the arm, the defendant exceeded her right of defense, since there was
light a match and then a kerosene lamp there was in the house and was not aware of no real need of wounding with the said weapon him who had merely caught by her
the assault made upon her husband by her sister Genoveva in front of Bautista, who arm, and perhaps did so to awake her, as she was asleep and had not replied to her
had already been wounded and was in an attitude indicating that he was about to fall sister's calls; and as the party who she believed was making an attempt against her
to the floor; thereupon Genoveva went down out of the house, calling for help, and honor, because he had caught her by the arm, performed no other act of aggression
ran to the house of an aunt of hers where she was arrested by the policeman, Manuel such as might indicate a decided purpose to commit an attempt against her honor
Peinado, to whom she then and there delivered the pocketknife with which she had than merely to catch her by the arm, and although the defendant believed that it was
assaulted her brother-in-law. the commencement of such an attempt and that she had to defend herself therefrom,
it is true that, once awake and provided with an effective weapon for her defense,
In view of the shape and direction of the wound received by the deceased and the there was no just nor reasonable cause for striking a blow therewith in the center of
part of the body where it was inflicted, according to the detailed report of the medical the body, where the principal vital organs are seated, of the man who had not
examination, it is questionable that the wound was inflicted by the defendant after performed any act which might be considered as an actual attempt against her honor.
she was arisen from the place where she had been sleeping, or, at least, when she
had raised up in a sitting posture or was seated on the floor, at the time that the From the foregoing considerations it is concluded that in the commission of the
deceased perhaps stooped over, in stumbling against her, and touched her left arm; crime there was present the circumstance of incomplete exemption from
but in no manner may it be presumed that she was assaulted her brother-in-law, responsibility, as all the three requisites specified in subarticle 4 of article of the
Bautista, while she was still lying on the floor of the house; such a presumption is Penal Code are not applicable; wherefore the criminal act is not altogether
precluded by a consideration of the direction the weapon took penetrating the excusable, on account of the lack of the second of the said requisites, although a
deceased's breast. majority of them were present, that is, the first and the third requisites; and,
therefore, in accordance with the provisions of article 86 of the code, a penalty lower
Maria Apego testified that, during the two years her sister Genoveva lived in their by one or two degrees than that prescribed by article 404 of the code, in the discretion
house, the latter had conducted herself correctly, that they had always gotten along of the court, must be imposed upon the defendant.
well and harmoniously together and had never the least misunderstanding between
them. The record does not show whether there had been any trouble or there existed In view of the fact that the accused is an ignorant woman, wholly uneducated, and
any resentment between the defendant and the deceased who, before he died and that it was not shown that, at the time when she assaulted the deceased, she knew
during the few moments he lived after he was wounded, made no statement whatever that he was her brother-in-law, account must be taken of the circumstance prescribed
relative to this point or to the conduct observed by the defendant with respect to the by article 11 of the code, in connection with Act No. 2142, as no aggravating
assault of which he was the victim, and, therefore, the defendant's testimony must circumstance whatever was present to counteract the effects of the said extenuating
be accepted, to wit, that she struck a blow with the pocketknife at the person beside circumstance; therefore, the penalty applicable to the defendant is the one lower by
her, and who afterwards turned out to be her brother-in-law, Pio Bautista, without two degrees and in the minimum period.
knowing who he was and in the belief that, since he touched her left arm, he was
about to commit an attempt against her honor. For the foregoing reasons it is our opinion that, with a reversal of the judgment
appealed from, the defendant, Genoveva Apego, should be, as she is hereby,
Under this hypothesis, it can not be denied that, upon the defendant's awakening, sentenced to the penalty of two years of prision correccional, to the accessories of
startled at feeling somebody grasp her left arm and believing that an attempt was article 61, to pay an indemnity of five hundred pesos to the heirs of the deceased,
being made against her honor, as she received no reply whatever to her question as and, in case of insolvency, to subsidiary imprisonment which shall not exceed one-
to who was beside her in the darkness of the house, she understood that there was a third of the principal penalty, and to the payment of the costs of both instances. In
positive unlawful aggression from which she had to defend herself with the said computing the time of the sentence, credit shall be allowed for one-half of the time
pocketknife, and it is also undeniable that there was no previous provication on her of imprisonment suffered by the defendant while awaiting trial. So ordered.
part; but it is unquestionable that, in making use of this deadly weapon, even in the
defense of her person and rights, by decidely wounding him who had touched her or
Arellano, C.J., Mapa and Johnson, JJ., concur. The court further finds that the appellant immediately upon discovering what she
had done ran out of the house calling for help, and that she, her sister, and the
Separate Opinions deceased were on the very friendliest terms. The result is that the appellant, a single
woman 25 years of age, was alone in the house when the deceased and his wife
CARSON, J., dissenting: arrived. The entry was made without the appellant's knowing anything about it, and
she was awakened by some stumbling against her and touching her left arm. She
I dissent. I am of opinion that there was no criminal intent on the part of the accused, then realized that someone was in the house, and it, being so dark that she could not
and that she did what she did in the reasonable belief that she was acting in defense distinguish the person, and believing as the court says, that the person had entered
of her virtue. (U. S. vs. Ah Chong, 15 Phil. Rep., 488.) for the purpose of raping her, she arose and struck in the dark with the knife. It later
developed that she had struck her own brother-in-law and killed him.
TRENT, J., dissenting:
The very moment she awoke was when she conceived the idea that some one had
I dissent. I think the appellant should be acquitted upon the facts stated in the entered the house for the purpose of raping her. In the short interval of time between
majority opinion. This court says: her awakening and the striking of the fatal blow, was there any possibility of her
disabusing her mind of such a belief, which, to her, must have amounted to man
overpowering fear? The wife of the deceased did not strike the match nor light the
The following conclusions of fact are derived from a careful study of this
lamp until after the appellant had struck the blow. All was in darkness. It was then
case: Upon the arrival of Maria Apego and her husband, Pio Bautista, at the
impossible for her to ascertain the identity of the deceased before she had used the
stairs of their house, and as Genoveva Apego did not reply to the call made
knife. So far as the record shows, no word was spoken by either of the spouses until
to her from the outside by her sister Maria, the said spouses went to the
after the blow had been delivered, and the accused received no reply to her injury as
upper floor of the house; Bautista led the way and, in order to enter, opened
to who was beside her. We must appreciate, therefore, the entrance of the spouses
the outside door, a sliding door, and as there was no light inside stumbled
with more or less noise, their groping around in darkness of the interior of the house,
against Genoveva Apego, who was sleeping near the said door, and touched
the awakening of the defendant from a sound sleep, her being alone in the house,
her left arm; thereupon, Genoveva awoke and believing, as she testified, that
her instant thought that some one is coming toward her intent upon committing a
somebody was trying to abuse her, seized the pocketknife aforementioned,
rape, increased by the failure of the deceased to answer her question, and the utter
asking at the same time who was beside her, and as she did not receive a
absence of anything to disabuse her mind of such an idea. With her mind still
reply immediately, she got up and struck the person before her a blow with
somewhat sluggish, she realizes the presence of some one bending over her has not
the said knife; in the meanwhile Maria Apego had separated from her
uttered a word; he makes no reply when she asks him who he is; and she is unable
husband to light a match and then a kerosene lamp there was in the house
to recognize him. What more natural than that a vituous woman would instantly
and was not aware of the assault made upon her husband by her sister, and
arrive at the conclusion that she was about to be made the victim of an immoral and
only when the light had been lit did she see her sister Genoveva in front of
lewd assault? The court says that in the absence of any evidence showing resentment
Bautista, who had already been wounded and was in an attitude indicating
existing between the deceased and the accused, her testimony to the effect that she
that he was about to fall to the floor; . . .
believed an attempt was being made against her honor must be believed. I fail to see
what possible bearing resentment entertained by the accused toward the deceased
. . . the defendant's testimony must be accepted, to wit, that she struck a blow would have. She did not recognize her assailant until after the light had been struck.
with the pocketknife at the person beside her, and who afterwards turned The identity of the deceased did not enter into belief that she was about to be raped.
out to be her brother-in-law, without knowing who he was and in the belief Had her assailant been worst enemy she would not have known it until after the harm
that, since he touched her left arm, he was about to commit an attempt had been done. But the facts of the case conclusively show that the accused
against her honor. entertained no resentment toward the deceased testified that her sister had lived in
the house for a long time and that she and her sister had always been on the most
amicable of terms. After the accused became aware of the identity of the deceased
she made not the slightest move to continue her attack or defense. I therefore agree As a matter of fact, the acts of the deceased were perfectly harmless. There was, as
with the conclusion of the court — but without reservation — that the testimony of a matter of law, based upon those actual facts, no unlawful aggression. Based upon
the defendant that she struck the blow under the impression that she was about to those actual facts of the case, there was no excuse whatever for the homicide. Based
become the victim of an unchaste must be accepted as true. upon those actual facts, the crime of homicide was committed with several
aggravating circumstances. The court, however, has imposed a sentence of two years
If the defendant believed that she was subjected to such an unlawful attack, the imprisonment and accessories. I must therefore believe that the court has tacitly, at
question arises, was such a belief excusable under the circumstances? least, adopted the view of the case that the sentence of conviction should be
predicated upon the following operative facts: A would-be ravisher approached the
The party killing, to justify, must have reasonable apprehension or fear of accused in the house where she was sleeping alone, etc.; in exercising her right of
death or serious bodily harm, at the time of the killing. . . . But to whom self-defense, she exceeded the limits of reasonable resistance against her assailant.
must the appearance of danger — the apprehension of the party killing — In this view of the case, the question arises as to whether a woman may ever go so
reasonably appear? To the jury after hearing all the evidence--after far in defense of her chastity as to kill her assailant, and if so, whether such extreme
ascertaining the real facts? . . . Or, must the real or apparent danger appear action was warranted in view of the circumstances as they presented themselves to
to the defendant at the time of the homicide to be reasonable? We think the the accused at the time she killed the deceased. To the first part of this question the
latter correct. The jury must view the facts upon his standpoint. Each juror answer must be, yes. In repulsing a felonious attack a person may go as far in his
must place himself in the position of the defendant at the time of the self-defense as may reasonably be necessary, viewing the circumstances of the case
homicide, and determine from all the facts, as they appeared to defendant at from his point of view. The books are full of cases where this principle has been
the time of the killing, whether his apprehension or fear of death or serious applied; but it is doubtful if any may be found where the victim of an attempted rape
bodily harm was reasonable; and if so, they should acquit. (Bell vs. The was tried for the murder of her assailant. In the case of United States vs. Santa Ana
State, 20 Tex. App., 445, and other authorities cited in the monographic note (22 Phil. Rep., 249), this court, in banc, said:
to The State vs. Sumner, 74 Am. St. Rep., 707, 723.)
When a man becomes so debased as to lose every instinct of manhood and
I think that the circumstances of the case at bar, so far as the appellant could perceive engages himself in the commission of so serious a crime (rape), he certainly
them at the time, were perfectly applicable to an assault with intent to commit rape, takes his life and liberty in his own hands, and if he loses the latter or
and that, therefore, the only possible way to arrive at a decision in this case on the receives serious physical injuries, his loss is no greater that he deserves. The
merits is to view the whole affair from the moment on the defendant awoke until the appellant is therefore entitled to an absolute acquittal upon the ground of
fatal blow was struck as an attempt to commit rape, which resulted in the death of self-defense.
the ravisher. The court does not expressly state its views on this branch of the case.
I understand, however, that the sentence of conviction her right of self-defense to a As to the second part of the question, it is necessary to again view the circumstances
disproportionate degree. At least such would be gathered from the following of the case as they appeared to the appellant at the time she struck the blow with the
language: knife. The court is of the opinion that she was not justified in striking that blow
because it says the man "had not performed any act which might be considered as
. . . and although the defendant believed that it was the commencement of an actual attempt against her honor." This statement is inexplicable. The only acts
such an attempt and that she had to defend herself therefrom, it is true that, which the deceased performed at all were those of stumbling against her body and
once awake and provided with an effective weapon for her defense, there touching her left arm, and the court had already arrived at the conclusion that the
was no just nor reasonable cause for striking a blow therewith in the center woman believed an attack was being made against her honor. In other words, the
of the body, where the principal vital organs are seated, of the man who had attempt had progressed to the point where her assailant had come in physical contact
not performed any act which might be considered as an actual attempt with her. Due either to willfulness or negligence, he did no reassure her as he should
against her honor. have done by answering her inquiry as to who he was. He was not merely standing
at a distance threatening her or making indecent gestures. She was alone in the
house. There was no possible way of retreat. Her physical inferiority must be
conceded. In another instant he would have grasped her by the arms and thus In this case a strong man, Ah Chong, was acquitted for killing his friend upon the
prevented her from using the knife at all. Was this the time to temporize, to threaten, ground that he believed that the intruder was a thief or a ladron seeking entrance for
to plead for mercy, or to strike half-heartedly with a weapon which would be useless the purpose of larceny or robbery. In the case at bar, a woman is convicted because
to her in another moment of time? The court would have had her select a less vital she exceeded the means necessary to defend her honor. Had she stated that she
part of the body for the blow; this in the darkness and most probably without being believed that the person who touched her arm had entered for the purpose of larceny
able to distinguish even the outlines of the human being who had attacked her. This or robbery, the two cases would have been, mutatis mutandis, identical; and under
would have called for deliberation and cool and discriminating but instant action. the former, if the court had followed the doctrine laid down in that case, she would
Every indication points to the fact that she struck wildly, perhaps while not yet fully have been acquitted. But as she was defending her honor she has been convicted.
awake, and, by the merest chance, with fatal results.lawph!l.net The court squarely places the loss of the property in the former case above the loss
of the honor and virtue of a woman in the latter case. To my mind there is no
In the case of United States vs. Ah Chong (15 Phil. Rep., 488), the defendant, Ah comparison between the gravity of the two offenses. The loss of a few personal
Chong, and Pascual Gualberto, were employed at the officers' mess in Fort articles, either by theft or robbery, cannot compare with the loss of woman's virtue
McKinley, the former as a cook and the latter as a muchacho. The two occupied the taken from her forcibly. Rape is one of the most heinous crimes, from a moral
same room and no one else occupied the same building. On the night of August 14, standpoint, known to the human race. A virtuous woman had rather die than be
1908, Gualberto had gone out for a walk, leaving Ah Chong alone in the room. raped. Yet, under the doctrine enunciated by this court, she is not authorized to use
About 10 o'clock on that night Ah Chong was suddenly awakened by some one the same means in repelling a vicious attack upon her honor that she would be in
trying to force open the door of the room. He called out, "Who is there?" Receiving defending her personal property. Considering the cases together, this court has said
no reply, he said: "If you enter the room I will kill you." He then seized a knife and that a man may kill a person whom he believes to be entering his premises at
went to the door, which was suddenly pushed open, and Gualberto entered. It was nighttime for the purpose of robbery, but that a woman must not go to that extent to
very dark in the room. Ah Chong struct out wildly at the intruder, and inflicted blows defend her honor. I cannot assent to such holding.
upon Gualberto which very shortly thereafter resulted in his death. Ah Chong
thought the intruder was a ladron. He was tried for the killing of Gualberto and The appellant should be, in my opinion, acquitted.
found guilty of homicide and sentenced to six years and one day of presidio mayor.
Upon appeal he was acquitted. This court said, pp. 492,493:

Under these provisions (Art. 8, penal Code) we think that there can be no
doubt that defendant would be entitled to complete exemption 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.

xxx xxx xxx

But the evidence clearly discloses that the intruder was not a thief or ladron.
That neither the defendant nor his property nor any of the property under his
charge was in real danger at the time 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.
and the defendant. Dunca and his son Aguipo eventually left the house and were
followed by Mapudul and one Award. The defendant left the house about the same
Republic of the Philippines time with intention of assaulting Dunca, but in the darkness of the evening and in
SUPREME COURT the intoxicated condition of the defendant, the mistook Mapudul for Dunca and
Manila inflicated on him a mortal wound with a bolo.

EN BANC There can no doubt that the defendant killed Mapudul and that he is guilty of the
crime charged, but his attorney argues that in view of the fact that said defendant
G.R. No. L-32066 March 15, 1903 had no intention to kill the deceased and committed the crime by mistake, he should
have been found guilty of homicide through negligence under paragraph 1 of article
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff and appellee, 568 of the Penal Code and not of the graver crime of intentional homicide.
GONA (Mansaca), defendant and appellant. This contention is contrary to earlier decisions of this court. In these case of United
State vs. Mendieta(34 Phil., 242), the court said:
Jose Ma. Capili for appellant.
Attorney-General Jaranilla for appellee. Even admitting that the defendant intended to injure Hilario Lauigan instead
of Pedro Acierto, even that, in view of the mortal wound which inflicted
OSTRAND, J.: upon the latter, in no way could be considered as a relief from his criminal
act. That he made a mistake in killing one man instead of another, when it
is proved that he acted maliciously and willfully, cannot relieve him from
The defendant was charged before the Court of First Instance of the Province of
criminal responsibility. Neither do we believe that the fact that he made a
Davao with the crime of homicide, the information reading as follows:
mistake in killing the wrong man should be considered as a mitigating
That on or about October 26, 1928, in the municipal district of Pantukan,
Province of Davao, Philippine Islands, as within the jurisdiction of the court,
The appealed sentence is affirmed with the costs against the defendant. So ordered.
the said accused voluntarily, illegally, and criminally and with a bolo which
he then carried, assaulted the Mansaca Mapudul, causing him a mortal
wound on the left side of the neck and that as a consequence of said wound, Johnson, Malcolm, Villamor, Johns, Romualdez and Villa-Real, JJ., concur.
the said Mapudul died.

Upon trial the court below found the defendant guilty as charged in the information
and taking into consideration the extenuating circumstance of non-habitual
intoxication, sentenced him to suffer twelve years and one of reclusion
temporal with the accessory penalties prosecuted by law to indemnity the heirs of
the deceased in the sum of P1,000, and to the costs. From this sentenced the
defendant appealed.

It appears from the evidence that on the evening of October 26, 1928, a number
of Mansacas celebrated a reunion in the house of the Mansaca Gabriel. There seems
to have been liberal supply of alcoholic drinks and some of the men present became
intoxicated, with the result that a quarrel took the place between the Mansaca Dunca
Republic of the Philippines morals of the same name. Upon request of the Provincial Inspector, the chief of
SUPREME COURT police tried to locate some of his men to guide the constabulary soldiers in
Manila ascertaining Balagtas' whereabouts, and failing to see anyone of them he volunteered
to go with the party. The Provincial Inspector divided the party into two groups with
EN BANC defendants Oanis and Galanta, and private Fernandez taking the route to Rizal street
leading to the house where Irene was supposedly living. When this group arrived at
G.R. No. L-47722 July 27, 1943 Irene's house, Oanis approached one Brigida Mallare, who was then stripping
banana stalks, and asked her where Irene's room was. Brigida indicated the place
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, and upon further inquiry also said that Irene was sleeping with her paramour. Brigida
vs. trembling, immediately returned to her own room which was very near that occupied
ANTONIO Z. OANIS and ALBERTO GALANTA, defendants-appellants. by Irene and her paramour. Defendants Oanis and Galanta then went to the room of
Irene, and an seeing a man sleeping with his back towards the door where they were,
Antonio Z. Oanis in his own behalf. simultaneously or successively fired at him with their .32 and .45 caliber revolvers.
Maximo L. Valenzuela for appellant Galanta. Awakened by the gunshots, Irene saw her paramour already wounded, and looking
Acting Solicitor-General Ibañez and Assistant Attorney Torres for appellee. at the door where the shots came, she saw the defendants still firing at him. Shocked
by the entire scene. Irene fainted; it turned out later that the person shot and killed
was not the notorious criminal Anselmo Balagtas but a peaceful and innocent citizen
named Serapio Tecson, Irene's paramour. The Provincial Inspector, informed of the
killing, repaired to the scene and when he asked as to who killed the deceased.
Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Galanta, referring to himself and to Oanis, answered: "We two, sir." The corpse was
Oanis and Alberto Galanta, chief of police of Cabanatuan and corporal of the thereafter brought to the provincial hospital and upon autopsy by Dr. Ricardo de
Philippine Constabulary, respectively, were, after due trial, found guilty by the lower Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were
court of homicide through reckless imprudence and were sentenced each to an found on Tecson's body which caused his death.
indeterminate penalty of from one year and six months to two years and two months
of prison correccional and to indemnify jointly and severally the heirs of the
These are the facts as found by the trial court and fully supported by the evidence,
deceased in the amount of P1,000. Defendants appealed separately from this
particularly by the testimony of Irene Requinea. Appellants gave, however, a
different version of the tragedy. According to Appellant Galanta, when he and chief
of police Oanis arrived at the house, the latter asked Brigida where Irene's room was.
In the afternoon of December 24, 1938. Captain Godofredo Monsod, Constabulary Brigida indicated the place, and upon further inquiry as to the whereabouts of
Provincial Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a Anselmo Balagtas, she said that he too was sleeping in the same room. Oanis went
telegram of the following tenor: "Information received escaped convict Anselmo to the room thus indicated and upon opening the curtain covering the door, he said:
Balagtas with bailarina and Irene in Cabanatuan get him dead or alive." Captain "If you are Balagtas, stand up." Tecson, the supposed Balagtas, and Irene woke up
Monsod accordingly called for his first sergeant and asked that he be given four men. and as the former was about to sit up in bed. Oanis fired at him. Wounded, Tecson
Defendant corporal Alberto Galanta, and privates Nicomedes Oralo, Venancio Serna leaned towards the door, and Oanis receded and shouted: "That is Balagtas." Galanta
and D. Fernandez, upon order of their sergeant, reported at the office of the then fired at Tecson.
Provincial Inspector where they were shown a copy of the above-quoted telegram
and a newspaper clipping containing a picture of Balagtas. They were instructed to
On the other hand, Oanis testified that after he had opened the curtain covering the
arrest Balagtas and, if overpowered, to follow the instruction contained in the
door and after having said, "if you are Balagtas stand up." Galanta at once fired at
telegram. The same instruction was given to the chief of police Oanis who was
Tecson, the supposed Balagtas, while the latter was still lying on bed, and continued
likewise called by the Provincial Inspector. When the chief of police was asked
firing until he had exhausted his bullets: that it was only thereafter that he, Oanis,
whether he knew one Irene, a bailarina, he answered that he knew one of loose
entered the door and upon seeing the supposed Balagtas, who was then apparently of the case, the crime committed by appellants is murder through specially mitigated
watching and picking up something from the floor, he fired at him. by circumstances to be mentioned below.

The trial court refused to believe the appellants. Their testimonies are certainly In support of the theory of non-liability by reasons of honest mistake of fact,
incredible not only because they are vitiated by a natural urge to exculpate appellants rely on the case of U.S. v. Ah Chong, 15 Phil., 488. The maxim
themselves of the crime, but also because they are materially contradictory. Oasis is ignorantia facti excusat, but this applies only when the mistake is committed
averred that be fired at Tecson when the latter was apparently watching somebody without fault or carelessness. In the Ah Chong case, defendant therein after having
in an attitudes of picking up something from the floor; on the other hand, Galanta gone to bed was awakened by someone trying to open the door. He called out twice,
testified that Oasis shot Tecson while the latter was about to sit up in bed "who is there," but received no answer. Fearing that the intruder was a robber, he
immediately after he was awakened by a noise. Galanta testified that he fired at leaped from his bed and called out again., "If you enter the room I will kill you." But
Tecson, the supposed Balagtas, when the latter was rushing at him. But Oanis at that precise moment, he was struck by a chair which had been placed against the
assured that when Galanta shot Tecson, the latter was still lying on bed. It is apparent door and believing that he was then being attacked, he seized a kitchen knife and
from these contradictions that when each of the appellants tries to exculpate himself struck and fatally wounded the intruder who turned out to be his room-mate. A
of the crime charged, he is at once belied by the other; but their mutual incriminating common illustration of innocent mistake of fact is the case of a man who was marked
averments dovetail with and corroborate substantially, the testimony of Irene as a footpad at night and in a lonely road held up a friend in a spirit of mischief, and
Requinea. It should be recalled that, according to Requinea, Tecson was still with leveled, pistol demanded his money or life. He was killed by his friend under
sleeping in bed when he was shot to death by appellants. And this, to a certain extent, the mistaken belief that the attack was real, that the pistol leveled at his head was
is confirmed by both appellants themselves in their mutual recriminations. loaded and that his life and property were in imminent danger at the hands of the
According, to Galanta, Oanis shot Tecson when the latter was still in bed about to aggressor. In these instances, there is an innocent mistake of fact committed without
sit up just after he was awakened by a noise. And Oanis assured that when Galanta any fault or carelessness because the accused, having no time or opportunity to make
shot Tecson, the latter was still lying in bed. Thus corroborated, and considering that a further inquiry, and being pressed by circumstances to act immediately, had no
the trial court had the opportunity to observe her demeanor on the stand, we believe alternative but to take the facts as they then appeared to him, and such facts justified
and so hold that no error was committed in accepting her testimony and in rejecting his act of killing. In the instant case, appellants, unlike the accused in the instances
the exculpatory pretensions of the two appellants. Furthermore, a careful cited, found no circumstances whatsoever which would press them to immediate
examination of Irene's testimony will show not only that her version of the tragedy action. The person in the room being then asleep, appellants had ample time and
is not concocted but that it contains all indicia of veracity. In her cross-examination, opportunity to ascertain his identity without hazard to themselves, and could even
even misleading questions had been put which were unsuccessful, the witness effect a bloodless arrest if any reasonable effort to that end had been made, as the
having stuck to the truth in every detail of the occurrence. Under these victim was unarmed, according to Irene Requinea. This, indeed, is the only
circumstances, we do not feel ourselves justified in disturbing the findings of fact legitimate course of action for appellants to follow even if the victim was really
made by the trial court. Balagtas, as they were instructed not to kill Balagtas at sight but to arrest him, and
to get him dead or alive only if resistance or aggression is offered by him.
The true fact, therefore, of the case is that, while Tecson was sleeping in his room
with his back towards the door, Oanis and Galanta, on sight, fired at him Although an officer in making a lawful arrest is justified in using such force as is
simultaneously or successively, believing him to be Anselmo Balagtas but without reasonably necessary to secure and detain the offender, overcome his resistance,
having made previously any reasonable inquiry as to his identity. And the question prevent his escape, recapture him if he escapes, and protect himself from bodily
is whether or not they may, upon such fact, be held responsible for the death thus harm (People vs. Delima, 46 Phil, 738), yet he is never justified in using unnecessary
caused to Tecson. It is contended that, as appellants acted in innocent mistake of fact force or in treating him with wanton violence, or in resorting to dangerous means
in the honest performance of their official duties, both of them believing that Tecson when the arrest could be effected otherwise (6 C.J.S., par. 13, p. 612). The doctrine
was Balagtas, they incur no criminal liability. Sustaining this theory in part, the is restated in the new Rules of Court thus: "No unnecessary or unreasonable force
lower court held and so declared them guilty of the crime of homicide through shall be used in making an arrest, and the person arrested shall not be subject to any
reckless imprudence. We are of the opinion, however, that, under the circumstances greater restraint than is necessary for his detention." (Rule 109, sec. 2, par. 2). And
a peace officer cannot claim exemption from criminal liability if he uses unnecessary no criminal liability when he acts in the fulfillment of a duty or in the lawful exercise
force or violence in making an arrest (5 C.J., p. 753; U.S. vs. Mendoza, 2 Phil., 109). of a right or office. There are two requisites in order that the circumstance may be
It may be true that Anselmo Balagtas was a notorious criminal, a life-termer, a taken as a justifying one: (a) that the offender acted in the performance of a duty or
fugitive from justice and a menace to the peace of the community, but these facts in the lawful exercise of a right; and (b) that the injury or offense committed be the
alone constitute no justification for killing him when in effecting his arrest, he offers necessary consequence of the due performance of such duty or the lawful exercise
no resistance or in fact no resistance can be offered, as when he is asleep. This, in of such right or office. In the instance case, only the first requisite is present —
effect, is the principle laid down, although upon different facts, in U.S. vs. Donoso appellants have acted in the performance of a duty. The second requisite is wanting
(3 Phil., 234, 242). for the crime by them committed is not the necessary consequence of a due
performance of their duty. Their duty was to arrest Balagtas or to get him dead or
It is, however, suggested that a notorious criminal "must be taken by storm" without alive if resistance is offered by him and they are overpowered. But through
regard to his right to life which he has by such notoriety already forfeited. We may impatience or over-anxiety or in their desire to take no chances, they have exceeded
approve of this standard of official conduct where the criminal offers resistance or in the fulfillment of such duty by killing the person whom they believed to be
does something which places his captors in danger of imminent attack. Otherwise Balagtas without any resistance from him and without making any previous inquiry
we cannot see how, as in the present case, the mere fact of notoriety can make the as to his identity. According to article 69 of the Revised Penal Code, the penalty
life of a criminal a mere trifle in the hands of the officers of the law. Notoriety rightly lower by one or two degrees than that prescribed by law shall, in such case, be
supplies a basis for redoubled official alertness and vigilance; it never can justify imposed.
precipitate action at the cost of human life. Where, as here, the precipitate action of
the appellants has cost an innocent life and there exist no circumstances whatsoever For all the foregoing, the judgment is modified and appellants are hereby declared
to warrant action of such character in the mind of a reasonably prudent man, guilty of murder with the mitigating circumstance above mentioned, and accordingly
condemnation — not condonation — should be the rule; otherwise we should offer sentenced to an indeterminate penalty of from five (5) years of prision
a premium to crime in the shelter of official actuation. correctional to fifteen (15) years of reclusion temporal, with the accessories of the
law, and to pay the heirs of the deceased Serapio Tecson jointly and severally an
The crime committed by appellants is not merely criminal negligence, the killing indemnity of P2,000, with costs.
being intentional and not accidental. In criminal negligence, the injury caused to
another should be unintentional, it being simply the incident of another act Yulo, C.J., Bocobo, Generoso and Lopez Vito, A., concur.
performed without malice. (People vs. Sara, 55 Phil., 939). In the words of Viada,
"para que se celifique un hecho de imprudencia es preciso que no haya mediado en Separate Opinions
el malicia ni intencion alguna de dañar; existiendo esa intencion, debera calificarse
el hecho del delito que ha producido, por mas que no haya sido la intencion del PARAS, J., dissenting:
agente el causar un mal de tanta gravedad como el que se produjo." (Tomo 7, Viada
Codigo Penal Comentado, 5.a ed. pag. 7). And, as once held by this Court, a Anselmo Balagtas, a life termer and notorious criminal, managed to escape and flee
deliberate intent to do an unlawful act is essentially inconsistent with the idea of form Manila to the provinces. Receiving information to the effect that he was staying
reckless imprudence (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., with one Irene in Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila
16), and where such unlawful act is wilfully done, a mistake in the identity of the ordered the Provincial Inspector in Cabanatuan by telegram dispatched on
intended victim cannot be considered as reckless imprudence (People vs. Gona, 54 December 25, 1938, to get Balagtas "dead or alive". Among those assigned to the
Phil., 605) to support a plea of mitigated liability. task of carrying out the said order, were Antonio Z. Oanis, chief of police of
Cabanatuan, and Alberto Galanta, a Constabulary corporal, to whom the telegram
As the deceased was killed while asleep, the crime committed is murder with the received by the Provincial Inspector and a newspaper picture of Balagtas were
qualifying circumstance of alevosia. There is, however, a mitigating circumstance shown. Oanis, Galanta and a Constabulary private, after being told by the Provincial
of weight consisting in the incomplete justifying circumstance defined in article 11, Inspector to gather information about Balagtas, "to arrest him and, if overpowered,
No. 5, of the Revised Penal Code. According to such legal provision, a person incurs
to follow the instructions contained in the telegram," proceeded to the place where it is immaterial whether or not the instruction given by the Provincial Inspector was
the house of Irene was located. Upon arriving thereat, Oanis approached Brigida legitimate and proper, because the facts exist that the appellants acted in conformity
Mallari, who was then gathering banana stalks in the yard, and inquired for the room with the express order of superior Constabulary authorities, the legality or propriety
of Irene. After Mallari had pointed out the room, she was asked by Oanis to tell of which is not herein questioned.
where Irene's paramour, Balagtas, was, whereupon Mallari answered that he was
sleeping with Irene. Upon reaching the room indicated, Oanis and Galanta, after the The theory of the prosecution has acquired some plausibility, though quite
former had shouted "Stand up, if you are Balagtas," started shooting the man who psychological or sentimental, in view only of the fact that it was not Balagtas who
was found by them lying down beside a woman. The man was thereby killed, but was actually killed, but an "innocent man . . . while he was deeply asleep."
Balagtas was still alive, for it turned out that the person shot by Oanis and Galanta Anybody's heart will be profoundly grieved by the trade, but in time will be consoled
was one Serapio Tecson. by the realization that the life of Serapio Tecson was not vainly sacrificed, for the
incident will always serve as a loud warning to any one desiring to follow in the
Consequently, Oanis and Galanta were charged with having committed murder. The footsteps of Anselmo Balagtas that in due time the duly constituted authorities will,
Court of First Instance of Nueva Ecija, however, convicted them only of homicide upon proper order, enforce the summary forfeiture of his life.
through reckless imprudence and sentenced them each to suffer the indeterminate
penalty of from 1 year and 6 months to 2 years and 2 months of prision correctional, In my opinion, therefore, the appellants are not criminally liable if the person killed
to jointly and severally indemnify the heirs of Serapio Tecson in the amount of by them was in fact Anselmo Balagtas for the reason that they did so in the
P1,000, and to pay the costs. Oanis and Galanta have appealed. fulfillment of their duty and in obedience to an order issued by a superior for some
lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6). They also cannot be
In accomplishing the acts with which the appellants were charged, they undoubtedly held criminally liable even if the person killed by them was not Anselmo Balagtas,
followed the order issued by the Constabulary authorities in Manila requiring the but Serapio Tecson, because they did so under an honest mistake of fact not due to
Provincial Inspector in Cabanatuan to get Balagtas dead or alive, in the honest belief negligence or bad faith. (U.S. vs. Ah Chong, 15 Phil., 488).
that Serapio Tecson was Anselmo Balagtas. As the latter became a fugitive criminal,
with revolvers in his possession and a record that made him extremely dangerous It is true that, under article 4 of the Revised Penal Code, criminal liability is incurred
and a public terror, the Constabulary authorities were justified in ordering his arrest, by any person committing a felony although the wrongful act done be different from
whether dead or alive. In view of said order and the danger faced by the appellants that which he intended; but said article is clearly inapplicable since the killing of the
in carrying it out, they cannot be said to have acted feloniously in shooting the person person who was believed to be Balagtas was, as already stated, not wrongful or
honestly believed by them to be the wanted man. Conscious of the fact that Balagtas felonious.
would rather kill than be captured, the appellants did not want to take chances and
should not be penalized for such prudence. On the contrary, they should be The case of U.S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not
commended for their bravery and courage bordering on recklessness because, in point, inasmuch as the defendant therein, who intended to injure Hilario Lauigan
without knowing or ascertaining whether the wanted man was in fact asleep in his with whom he had a quarrel, but killed another by mistake, would not be exempted
room, they proceeded thereto without hesitation and thereby exposed their lives to from criminal liability if he actually injured or killed Hilario Lauigan, there being a
danger. malicious design on his part. The other case involved by the prosecution is U.S. vs.
Donoso (3 Phil., 234). This is also not in point, as it appears that the defendants
The Solicitor-General, however, contends that the appellants were authorized to use therein killed one Pedro Almasan after he had already surrendered and allowed
their revolvers only after being overpowered by Balagtas. In the first place, the himself to be bound and that the said defendants did not have lawful instructions
alleged instruction by the Provincial Inspector to that effect, was in violation of the from superior authorities to capture Almasan dead or alive.
express order given by the Constabulary authorities in Manila and which was shown
to the appellants. In the second place, it would indeed be suicidal for the appellants The appealed judgment should therefore be reversed and the appellants, Antonio Z.
or, for that matter, any agent of the authority to have waited until they have been Oanis and Alberto Galanta, acquitted, with costs de oficio.
overpowered before trying to put our such a character as Balagtas. In the third place,
or two degrees than that prescribed by law. This incomplete justifying circumstance
is that defined in Article 11, No. 5 of the Revised Penal Code, in favor of "a person
who acts in the fulfillment of a duty or in the lawful exercise of a right or office." I
HONTIVEROS, J., dissenting: believe that the application of this circumstance is not proper. Article 69 of the
Revised Penal Code provides as follows:
According to the opinion of the majority, it is proper to follow the rule that a
notorious criminal "must be taken by storm without regard to his life which he has, Art. 69. Penalty to be imposed when the crime committed is not wholly
by his conduct, already forfeited," whenever said criminal offers resistance or does excusable. — A penalty lower by one or two degrees than that prescribed
something which places his captors in danger of imminent attack. Precisely, the by law shall be imposed if the deed is not wholly excusable by reason of the
situation which confronted the accused-appellants Antonio Z. Oanis and Alberto lack of some of the conditions required to justify the same or to exempt from
Galanta in the afternoon of December 24, 1938, was very similar to this. It must be criminal liability in the several cases mentioned in articles 11 and 12,
remembered that both officers received instructions to get Balagtas "dead or alive" provided that the majority of such conditions be present. The courts shall
and according to the attitude of not only the said appellants but also of Capt. impose the penalty in the period which may be deemed proper, in view of
Monsod, constabulary provincial inspector of Nueva Ecija, it may be assumed that the number and nature of the conditions of exemption present or lacking.
said instructions gave more emphasis to the first part; namely, to take him dead. It
appears in the record that after the shooting, and having been informed of the case, This provision has been copied almost verbatim from Article 84 of the old Penal
Capt. Monsod stated that Oanis and Galanta might be decorated for what they had Code of the Philippines, and which was also taken from Article 87 of the Spanish
done. That was when all parties concerned honestly believed that the dead person Penal Code of 1870.
was Balagtas himself, a dangerous criminal who had escaped from his guards and
was supposedly armed with a .45 caliber pistol Brigida Mallari, the person whom Judge Guillermo Guevara, one of the members of the Committee created by
the appellants met upon arriving at the house of Irene Requinea, supposed mistress Administrative Order No. 94 of the Department of Justice for the drafting of the
of Balagtas, informed them that said Balagtas was upstairs. Appellants found there Revised Penal Code, in commenting on Article 69, said that the justifying
asleep a man closely resembling the wanted criminal. Oanis said: If you are Balagtas circumstances and circumstances exempting from liability which are the subject
stand up," But the supposed criminal showed his intention to attack the appellants, matter of this article are the following: self-defense, defense of relatives, defense of
a conduct easily explained by the fact that he should have felt offended by the strangers, state of necessity and injury caused by mere accident. Accordingly,
intrusion of persons in the room where he was peacefully lying down with his justifying circumstance No. 5 of Article 11 dealing with the fulfillment of a duty or
mistress. In such predicament, it was nothing but human on the part of the appellants the lawful exercise of a right, calling or office, cannot be placed within its scope.
to employ force and to make use of their weapons in order to repel the imminent
attack by a person who, according to their belief, was Balagtas It was unfortunate, The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87
however that an innocent man was actually killed. But taking into consideration the of the Spanish Penal Code of 1870 which is the source of Article 69 of our Code
facts of the case, it is, according to my humble opinion, proper to apply herein the says:
doctrine laid down in the case of U.S. vs. Ah Chong (15 Phil., 488). In the instant
case we have, as in the case supra, an innocent mistake of fact committed without Ni tratandose de la imbecilidad, ni de la locura, ni de la menor edad, ni del
any fault or carelessness on the part of the accused, who having no time to make a que obra violentado por una fuerza inrresistible o impulsado por miedo
further inquiry, had no alternative but to take the facts as they appeared to them and insuperable de un mal igual o mayor, o en cumplimiento de un deber, o en
act immediately. el ejercito legitimo de un derecho, oficio o cargo, o en virtud de obediencia
debida, ni del que incurre en alguna omision hallandose impedido por causa
The decision of the majority, in recognition of the special circumstances of this case legitima o insuperable, puede tener aplicacion al articulo que comentamos.
which favored the accused-appellants, arrives at the conclusion that an incomplete Y la razon es obvia. En ninguna de estas execiones hay pluralidad de
justifying circumstance may be invoked, and therefore, according to Article 69 of requisitos. La irrespondabilidad depende de una sola condicion. Hay o no
the Revised Penal Code, the imposable penalty should be one which is lower by one
perturbacion de la razon; el autor del hecho es o no menor de nueve años; of the non-commissioned officers and privates of the constabulary post at
existe o no violencia material o moral irresistible, etc., etc.; tal es lo que Cabanatuan. Galanta stated that he had fired only one shot and missed. This
respectivamente hay que examinar y resolver para declarar la culpabilidad testimony is corroborated by that of a ballistic expert who testified that bullets
o inculpabilidad. Es, por lo tanto, imposible que acontezca lo que el texto exhibits F and O, — the first being extracted from the head of the deceased, causing
que va al frente de estas lineas rquiere, para que se imponga al autor del wound No. 3 of autopsy report Exhibit C and the second found at the place of the
hecho la penalidad excepcional que establece; esto es, que shooting, — had not been fired from revolver Exhibit L nor from any other revolver
falten algunos requisitos de los que la ley exige para eximir de of the constabulary station in Cabanatuan. It was impossible for the accused Galanta
responsabilidad, y que concurran el mayor numero de ellos, toda vez que, to have substituted his revolver because when Exhibit L was taken from him nobody
en los casos referidos, la ley no exige multiples condiciones. in the barracks doubted that the deceased was none other than Balagtas. Moreover,
Exhibit L was not out of order and therefore there was no reason why Galanta should
It must be taken into account the fact according to Article 69 a penalty lower by one carry along another gun, according to the natural course of things. On the other hand,
or two degrees than that prescribed by law shall be imposed if the deed is not wholly aside from wound No. 3 as above stated, no other wound may be said to have been
excusable by reason of the lack of some of the conditions required by the law to caused by a .45 caliber revolver bullet. Doctor Castro's record gives the conclusion
justify the same or exempt from criminal liability. The word "conditions" should not that wound No. 2 must have been caused by a .45 caliber revolver bullet. Doctor
be confused with the word "requisites". In dealing with justifying circumstance No. Castro's record gives the conclusion that wound No. 2 must have been caused by a
5 Judge Guevara states: "There are two requisites in order that this circumstance .45 caliber bullet, but inasmuch as the diameter of the wound's entrance was only 8
may be taken into account: (a) That the offender acted in the performance of his mm., the caliber should be .32 and not .45, because according to the medico-legal
duty or in the lawful exercise of a right; and (b) That the injury or offense committed expert who testified in this case, a bullet of a .45 caliber will produce a wound
be the necessary consequence of the performance of a duty or the lawful exercise of entrance with either 11 mm. or 12 mm. diameter. All other wounds found by the
a right or office." It is evident that these two requisites concur in the present case if surgeon who performed the autopsy appeared to have been caused by bullets of a
we consider the intimate connection between the order given to the appellant by lesser caliber. In consequence, it can be stated that no bullet fired by Galanta did
Capt. Monsod, the showing to them of the telegram from Manila to get Balagtas who ever hit or kill Serapio Tecson and therefore there is no reason why he should be
was with a bailarina named Irene, the conduct of said appellants in questioning declared criminally responsible for said death.
Brigida Mallari and giving a warning to the supposed criminal when both found him
with Irene, and the statement made by Capt. Monsod after the shooting.

If appellant Oanis is entitled to a reversal of the decision of the court below, there
are more reasons in favor of the acquittal of appellant Galanta. According to the
evidence no bullet from the gun fired by this accused ever hit Serapio Tecson.
Galanta was armed in the afternoon of December 24, 1938, with a .45 caliber
revolver (Exhibit L). He so testified and was corroborated by the unchallenged
testimony of his superior officer Sgt. Valeriano Serafica. According to this witness,
since Galanta was made a corporal of the Constabulary he was given, as part of his
equipment, revolver Exhibit L with a serial No. 37121. This gun had been constantly
used by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said
accused when he took it from his trunk in the barracks on the night of December 24,
1938, upon order of Captain Monsod, it was the same revolver which was given to
the witness with five .45 caliber bullets and one empty shell. Fourteen unused bullets
were also taken from Galanta by Sergeant Serafica, thus completing his regular
equipment of twenty bullets which he had on the morning of December 24, 1938,
when Sergeant Serafica made the usual inspection of the firearms in the possession