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[ GR No. 6372, Mar 27, 1911 ]



19 Phil. 227

[ G.R. No. 6372, March 27, 1911 ]




This is an appeal from a judgment  of the Court of First Instance whereby  the accused,  convicted of the  crime of homicide perpetrated upon the person  of Francisco Gaspar, was sentenced  to  the penalty of 12  years and  1 day of reclusion temporal, to pay  an indemnity of P1,000 to the heirs of the deceased, and the costs of the trial.

No question has been raised with respect to the actual occurrence of the alleged crime.  The accused expressly admits that he inflicted the wounds which very soon afterwards caused the death of the deceased.  But the evidence is extremely contradictory with regard to the mode in which the act  was performed.  The wife and a daughter of the deceased, the only eyewitnesses presented by the  prosecution, testified  that on the day of the crime, the accused, accompanied by his sister, Filomena Molina, and  his brother- in-law, Santiago Elseco, went to the house of the deceased; that the latter was sitting on the ground inside of the lot on which the said house was situated, with his back toward the  place from whence the  accused was approaching; and that on  arriving near the victim, without saying a word, he assaulted him from behind with  a bolo  which he was carrying, causing him several wounds which  resulted in his death a few moments afterwards.

The accused, in  his  own behalf,  testified that  his  son, Sabino Molina, and a daughter of the deceased, named Agapita Gaspar, had been living together as husband and wife in the house of  the deceased,  with the consent of both families; that after a month his son  had to  leave the  said house because of some trouble that arose between the latter and  the deceased; that on the day preceding the occurrence which gave rise to the present cause, the wife of the deceased was  in the defendant's house and invited him, in the name of her husband, to go with other members of his family to the house of the deceased for the purpose of settling the difficulty concerning their children; that, acceding to the invitation, he went to the house of the deceased on the day aforementioned, in  company with his daughter, Filomena Molina, and his brother-in-law, Santiago Elseco, and found the deceased sitting on the ground inside his lot; and  that, on coming up to him the defendant said good day to him, to which salutation the latter replied by saying "of what use are your words?" and, after uttering an injurious and insulting sentence, immediately assaulted  the  accused and cut him with a bolo, and that, as the defendant carried no arms whatever, he struggled hand-to-hand with him and finally succeeded in wresting from him the bolo with which he then inflicted upon the deceased the wounds from which the latter died shortly afterwards.  The defendant further testified that he found himself compelled to inflict upon the deceased the said wounds, because the latter, on losing possession of the bolo, "seized the hatchet," - these are his own words - "and was  going to  assault me again and  then I struck  him and  cut him  on the head.  And after those slashes on the  head," he continued, "he assaulted me again and we struggled hand to hand."   Finally the defendant, in another part of his testimony, insisted in saying that  after he had wrested the bolo from the deceased, the  latter still continued to struggle with him, trying to  strike him  with a  hatchet.   The testimony of the accused was corroborated in all its essential points by  Santiago Elseco and Filomena Molina, who accompanied him to the house of the deceased on the occasion of the occurrence referred to.   In summing up the evidence the trial court, in the judgment appealed from,  says:
"The evidence adduced by the prosecution is totally different from that presented by the defense, as regards the circumstances connected with the  commission of the crime. The prosecution claims that  the deceased was assaulted  by 4he accused who approached him from behind, cautiously, without any provocation whatever (for the evidence of the prosecution did not disclose the existence of any) and, in the presence of the woman Filomena Molina and  of Santiago Elseco, assaulted the deceased, with a bolo, inflicting  upon him  wounds from which  he died.   The defense adduced clearer,  more  reasonable and comprehensible  facts.  The young people, Agapita Gaspar and Sabino Molina, lived together  as  husband and wife, with  the consent of  both families, in accordance  with a  custom which,  it appears, prevails among a certain class of people in the Province of Cagayan.   Apparently it was  agreed that  these  young people should marry later, but in the meantime the deceased had trouble with Sabino Molina and expelled him from the house.  It is very natural to suppose that the deceased may have  pondered  over  the affair after the  quarrel.  His daughter hadjost her reputation and honor,  and whatever be the motive which impelled him to  send for the accused, whether to avenge himself for the dishonor of his daughter or to settle the  trouble that  had arisen, the court, taking into account all these circumstances, must accept as a fact proved beyond all reasonable  doubt, the conclusion that the deceased, on  the day of the crime, sent  for the accused. Moreover, if the accused  had had the intention of going to the house of the deceased for  the purpose of killing him, it is very improbable that he should have taken his sister, Filomena Molina, with him.  The presence of this woman, in the opinion of this court,  is  highly corroborative of the claim made by the defense,  that the accused went to the house of the deceased on the  day of the crime with the intention of attending a council between the two families, and. not with the intention of causing any harm to the deceased. It was not shown what occurred between these two men or what words were exchanged that may have given rise to the fight, but the court must believe, in view of all the testimony adduced, that the accused and his companions were unarmed; that the deceased was armed with a bolo; that the latter was the aggressor, and that the accused, after having overpowered the deceased, wrested from him the bolo which he was carrying and with it struck the deceased  several blows, thereby killing him  almost instantly."
To the statements of the court, the Attorney-General in his brief adds that the accused presented himself to the authorities immediately after the occurrence, which, he says, is circumstantial evidence that  corroborates the conclusion of the lower  court that  the  said accused  was unlawfully assaulted by the deceased.

We accept the finding of the trial court in regard to this point.   We believe that the assault was really commenced by the deceased and that it was not provoked in any manner by the accused, and also that the latter was completely unarmed at the time he was assaulted.  Withal, the  lower court was of the opinion that there was no rational necessity for the means employed by the said accused for the  purpose of repelling the attack  made upon him.  He says:
"The accused himself admitted that he only received a slight scratch above the eye during the struggle in which he engaged with the deceased, and admitted, moreover, that the deceased was unarmed and completely at his mercy after the accused had disarmed him.  The evidence showed that the accused could have wrested the bolo from the deceased and afterwards fled, had he wished to respect the life of the deceased, and the court is of the opinion that there was no rational necessity for  the accused to have slain his adversary, once that he had become master of the bolo."
The last part of this, reasoning is sufficiently answered in the Attorney-General's brief, wherein it is said, and rightly, citing the decision of the  supreme court of Spain of  April 21, 1880, that the fact of the assaulted party's not taking to flight is not a sufficient reason for not upholding, in a proper case, the rational necessity for the means employed to repel the assault.

Moreover, it is not exactly true that the deceased remained completely at the mercy of the accused after the latter had wrested the bolo from  him,  and much Jess did  the  accused admit such a  his testimony; far from making an admission of this kind, he expressly and insistently stated that the deceased, on losing possession of the bolo, seized, or tried to seize,  a hatchet, in order therewith to continue the assault, and that it was when  the accused  perceived such attempt that he  slashed the  deceased on the head with the same bolo.he had wrested  from him.  It was clearly shown by the testimony of  the accused, corroborated by the  witness Elseco, that after the commencement of the assault by the deceased, the struggle between the latter and the accused did not cease for one moment, now each combatant trying to wrest the bolo away from the other, now the deceased endeavoring to arm himself with the hatchet which undoubtedly was within his reach, until finally the deceased himself was disabled and could no  longer continue to struggle in consequence of the wounds which he received during the affray.  Considering the decidedly aggressive attitude of the deceased from the commencement of this struggle until its termination, it  can  not be said that there was a cessation of the danger for the accused, even for a single  instant If,  through the various incidents of the struggle, or any favorable accident whatever, the deceased had succeeded in recovering the bolo or in possessing himself of the hatchet, as he attempted to  do to the last, the result of the combat would probably have been  very different; perhaps the accused, instead of being the slayer, would himself have been killed.  The accused  certainly was not  in  duty bound  to expose himself to such a contingency, and while the struggle continued,  and,  consequently,  the danger to his person  or to his life subsisted he had a perfect and indisputable right to repel such danger by wounding his adversary, if necessary, as from the circumstances of the  case it  was,  without any doubt whatever, and even to  disable him completely so that he could not  continue the  assault.  In  our opinion, the means employed by the accused were rationally necessary to repel the assault, and as the  latter was in all respects unlawful and was not preceded by any provocation of any kind on the part of  the accused himself, we declare the said accused to be exempt from criminal liability, in accordance with the provisions  of paragraph  4 of article 8 of the Penal Code.

The judgment appealed from is reversed, the defendant is acquitted and will immediately be released, with the costs of both instances de oficio.   So ordered.

Arellano, C. J., Carson, Moreland, and Trent, JJ., concur.