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[US v. PONCIANO SALAZAR](http://lawyerly.ph/juris/view/ce0a?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 5439, Feb 23, 1910 ]

US v. PONCIANO SALAZAR +

DECISION

15 Phil. 315

[ G. R. No. 5439, February 23, 1910 ]

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. PONCIANO SALAZAR AND VENANCIO VILLANUEVA, DEFENDANTS AND APPELLANTS.

D E C I S I O N

MORELAND, J.:

The defendants were accused  of murder.   The information alleges that  on or about the 17th day of September, 1908, in the barrio of Rabago  in the pueblo of Rosales, Province of Pangasinan, the defendants with treachery and premeditation killed Felix Mendoza by shooting him with revolvers and with a Remington rifle, inflicting upon  him six wounds, from which he died immediately.   The defendants were convicted  of homicide by  the  Court of First Instance of the Province of Pangasinan and sentenced each to fourteen  years eight months and one  day of reclusion temporal, accessories, indemnification, and  costs.  From this judgment and sentence the defendants appealed.

The prosecution presented four witnesses,  the first  and most important of whom was Veronica Valenzuela.  Upon the trial  she testified that she  was  a concubine of the deceased, living with  him and his wife, Praxedes Doliente, in the pueblo of Rosales; that on the 17th day of September, 1908, there were  present in that house Felix  Mendoza, the witness,  and one Pascual  Ismael; that very  early in the morning of said  day four individuals, namely,  Ponciano Salazar,  Venancio Villanueva,  Antonino Evaristo,  and Eugenio  Seriosa,  came to the house; that Villanueva, Evaristo, and Seriosa were armed with revolvers and Salazar was armed  with a Remington  rifle;  that said  four,  on arriving  at the house, arrested  Felix  Mendoza; that they bound  him to  Pascual Ismael;  that,  after having bound them, the four individuals discharged  several shots at the house,  then  entered the same and searched   it carefully; that,  after completing their  search,  they destroyed  the house; that they then left the house, taking with  them the witness, Mendoza, and Ismael, conducting them to the house of Toribio Ramos, where  they  ate their breakfast; that during the breakfast Mendoza was tied to a table leg; that in the afternoon  they left the house  and soon thereafter released  Ismael;  that  they proceeded  in the  direction of Rabago and arrived there  late in the afternoon; that there they ate their supper; that they then proceeded to a point just outside of the pueblo of Rosales and stopped again; that they were so near some of the inhabited houses of the pueblo that the people occupying the  houses  could  hear the ordinary conversation of the defendants and their companions; that, after  it became dark, they  built  a large bonfire in the  road, from the light of  which everything for some distance around became plainly visible;  that, after having made the fire, Salazar said to  Mendoza, "Commend your soul to God, because now we are going to kill you;" that thereupon Mendoza got down  upon his knees in the middle of the road and in the light of  the bonfire and Salazar shot him  in  the  back with the Remington rifle; that Mendoza, on receiving the shot, said "Pardon me and have pity on my family;" that his captors paid no attention to his words, but, on the contrary, both of the  defendants, together with  Evaristo and  Seriosa,  shot  him repeatedly in the back with  their revolvers; that they shot him at a distance  of from  6 to 8  meters;  that while  they  were shooting him,  they began to cry "guerilla, guerilla;" that after they had shot him, Salazar went to where witness was kneeling and  said to her, "Go over yonder where he is arid beg his pardon;" that she thereupon  approached Mendoza, who was  still able to speak and who  said to her "my poor family" and immediately expired; that thereupon the defendants went to the justice of the peace to give an account of what had happened, agreeing  that  they would say  to the justice  that they  had been attacked by malefactors, and that deceased, in attempting  to  escape in the confusion, was killed; that the killing of Mendoza occurred between 7 and 8 o'clock of the night; that, while the night was dark, she was able to see perfectly all  that transpired, not only because it occurred in the middle of the street and her view was therefore unobstructed,  but also by reason of the bonfire which they had made; that when  Mendoza was shot his elbows were bound together and there was a rope around his neck.

Said  Veronica  Valenzuela is the  only  witness  for the prosecution who claims to have seen the event.  The witness Ismael corroborated, to some extent,  the testimony of the witness Valenzuela up to the time when he was set at liberty, but fails wholly to  corroborate her in the most important portion of her testimony.  He  does  not testify that the deceased was bound elbow to  elbow as stated  by her. Neither  does the witness Praxedes Doliente,  wife of the deceased.  Upon that point Veronica is wholly without corroboration.

The witness  Dizon,  the fourth and last  witness of the prosecution, testified that he, at the time of the commission of the alleged crimes, was the sanitary  inspector of that district; that he was not  a physician or surgeon; that he examined the body of Felix Mendoza two  or three  days after his death; that he found  six gunshot wounds in the body, five of which were  mortal; that two of the wounds were  made by  a Remington rifle  and the other four by revolvers; that he knew said two wounds were caused by a Remington rifle because those wounds were much larger in size than the other four wounds; that some of the wounds were inflicted from  the rear; that the  reason why he knew that such wounds were inflicted from the rear was that the wounds in  front  were larger than  those in the back, he alleging that the bullet in  its exit makes a larger aperture than at its entrance; that he had no  knowledge whatever of his own upon that subject and had never tried, or seen tried, any experiments from the results of which he could draw  such  an inference; that  some of said wounds must have been made while deceased was on his  knees  because the  track of the bullets took a downward slant,  their exit being lower upon the body than their entrance.

These are the only witnesses produced by the prosecution.

The defendants testified in their own behalf.  The facts, as they and the three witnesses, Evaristo, Seriosa, and Severo, who were of the party having  deceased in custody, relate them, are as follows:

Some time prior  to the event from which this action springs  it was known to the Constabulary officers of that locality that the deceased was in possession of prohibited arms  and that  he  was a  desperate character and  was strongly suspected of complicity in various robberies and other crimes.  For the purpose of obtaining such arms the captain of the Constabulary of that district  ordered the defendant Villanueva, who was a member of the Constabulary, to arrest the deceased and search his premises.  In order to carry out this order the defendant Villanueva took with him the defendant  Salazar, a municipal policeman of Rosales, Pangasinan,  Eugenio Seriosa, another member of the Constabulary, and Antonio Evaristo,  a member of the secret police of Rosales. These four were later joined by Eulalio Severo, a rural  policeman.  They went to the house of the deceased, arrested him  upon a warrant  previously  procured  for the  purpose,  searched  the  premises and  discovered a Remington rifle  and a quantity of cartridges belonging to the same.  Thereupon they started to take him before the justice of the peace who had issued the warrant. Between 7 and 8 o'clock of the night in question they arrived at a place near the  pueblo of Rosales  and within earshot of many of the houses belonging to that pueblo.  On arriving at said place they were beset by a band of persons unknown, and were ordered to halt and to disclose who they were.  On answering that  they were municipal policemen and members of the Constabulary they heard  the words from the band of unknown, "avance en guerrilla," followed instantly by the discharge of several shots  from firearms. Thereupon they  in turn discharged  several shots  at  the unknown  persons.  At that moment, and during the confusion ensuing, the deceased, Mendoza, leaped forward  and grasped the revolver which the defendant Salazar  had in his hand and sought to wrest it from him.   Salazar, seeing that the deceased would succeed in his design, called upon the defendant Villanueva to aid him.   Villanueva, on reaching the side of Salazar, observed that Mendoza had hold of the revolver  and was endeavoring with all his might to secure  complete  possession  of it.  Villanueva  thereupon sought to aid his companion and both he and. Salazar attempted  to break the hold which the deceased had upon it. Finding  that they could not do  so, the defendant Villanueva said to the deceased "let loose of the revolver for your own safety."   Mendoza did not reply, but redoubled his  efforts to obtain possession of it.   Villanueva, seeing that  it was likely that the deceased, on account of his unusual physical strength, would succeed  in obtaining possession of the revolver unless heroic measures  were immediately adopted, in order to prevent that result, discharged his revolver at deceased.  Instead of letting go of the revolver and ceasing his efforts to obtain possession  of it,  the deceased continued to hold fast to it and attacked  the two more savagely than before.   Thereupon Villanueva again fired his revolver at the deceased.  It seems that at this point deceased let go the revolver  but did not cease his attack on them, but rather continued to attack them both, advancing against them fiercely. They both then fired at him for the purpose of repelling his assault and continued  to discharge their revolvers at him until he fell to the ground.  The defense further  says that the  deceased did not cease to attack them until he had been shot several times; that they did not shopt him after he ceased to attack them;  that they shot  him because he, being much larger and stronger than they, was likely to obtain possession of the revolver, in which event they knew he would do  all he could to kill them both; that no shots whatever were fired from  the  Remington rifle;  that  said Remington rifle was not in possession of Salazar, as alleged by Veronica, at any time, but was at all times in the possession of Seriosa, who, with  Evaristo  and the witness Veronica and  the rural policeman, Severo, was far behind Salazar and Villanueva at the time  that the deceased was shot; that the  night was dark and  that  it was impossible  for Seriosa or his companions in the rear of Veronica, who  was with them, to see what was transpiring;  that the'defendants at no time bound the  deceased elbow to elbow; that he had a rqpe around his  right arm only, the other end being held by Salazar so that the deceased could not escape in the darkness; that they made no bonfire  prior to the death of Mendoza; that a bonfire was made  prior to the arrival of the justice of the peace by those who were guarding the corpse.

As before stated, Veronica Valenzuela is the only witness for the prosecution who claims to have witnessed the death of Mendoza, and she is, therefore, the only witness who contradicts  the story of the defendants and their witnesses. After a careful examination of the evidence we do not believe her testimony should be given any weight whatever, and for the following reasons:
  1. She says that the deceased was bound elbow to elbow from the time he was arrested until the  time of his death, and that he also had a rope around his neck which was held so tight by his captors that he was unable to stoop forward. This testimony is not corroborated by any witness.  On the contrary, it is denied in every part by the  defendants, by Seriosa,  Severo, and  Evaristo, and also by the witnesses Ramos,  Nacion, Espejo, Bermejo, and Organista, who saw the party at various points of the way as they traveled  from the place where deceased was arrested to the place where he was  killed.  They all testified, that at no time  and at  no place was the deceased bound  elbow to elbow, nor did he have a rope around his neck.  All concur in  stating that he had a rope tied around his right arm only and that the end of the rope was held by one of his captors.   It appears from the testimony of the justice of the peace and those who accompanied  him when he went to view the remains that the deceased had  a  rope around his right arm only.

  2. She also testifies that the party was not attacked  by a band of  malefactors, as described by the defendants, but that  the defendants agreed among themselves  that  they would make it appear that they had been so attacked in order to excuse the commission of the  crime.  This testimony is opposed by the declarations of the defendants and by that  of Seriosa,  Severo, and Evaristo, and also by the testimony of Organista, who was an  inhabitant of  the pueblo of Rosales and who  heard the shots of the band of malefactors, followed by the shots of the  Constabulary in return; also by the testimony of the witness Sevilla, who was also a resident of that  pueblo and who heard not only the  shots of the band of malefactors but also the words "avance en guerrilla"  The witness Canonizado, the justice of the peace referred to, testified that when he arrived at the scene of the event the witness Veronica said to him that she  was very glad that  he  had come because she had  not yet  lost the fear under which she  had  labored  because of their having been attacked by the band of  malefactors, and because of the shots which they had fired.  He says that she  further stated to him directly and positively that they had  been attacked by a band of malefactors.

  3. She also testified that four persons, the two defendants and  Seriosa and Evaristo, all shot the deceased.  She says that  Salazar  shot him  with  the  Remington  rifle,  while the  other three shot him  with their revolvers.  The  defendants  and the witnesses Seriosa and Evaristo  all testified that the two revolvers carried  by Evaristo and Seriosa were broken and  wholly useless and could not be cocked or discharged.  The  witness  John J. Gallant,  captain of Constabulary, testified that the  said two  revolvers  were those which he served out to Seriosa and Evaristo and that they were broken and utterly useless and could not be cocked or discharged.  To the  same  effect is  the  testimony of Lieutenant  Branson  of  the Constabulary.  The two  revolvers were introduced in evidence and are found to  be in the condition  described by the defendants and  their witnesses.

  4. She also testified that prior  to the  time when he was arrested  she had  never  seen  a gun or other firearm in Mendoza's house and that she did not know of his  having any  firearms whatever,  and that the Remington rifle in question was brought to Mendoza's house by the defendants themselves.   This  testimony is flatly contradicted by  Captain  Gallant, who  says that neither the  Constabulary nor the police were permitted to carry Remington rifles or other rifles and that no rifles of any description were served out to them.   Lieutenant Branson also testified to  the same effect.  All of the defendants and all of the other persons present at the  death  of  the  deceased testified that none of the party had a Remington rifle until one was found in the house of Mendoza.  In further contradiction of the testimony of the witness Veronica upon this point, the justice of the peace before referred to testified that she came before him some  time prior to the arrest of Mendoza  and gave information that Mendoza had in his house a Remington rifle and a revolver and that she asked that they  be  taken away from  him  because she was afraid that  he  might  do  her harm with them.  The witness Evaristo testified that the witness Veronica came to  him as a member of the Constabulary some time prior to the death of deceased and told him that Mendoza had prohibited  arms,  and asked him to take measures to remove them from his house.
It is claimed, however, that the testimony  of  the witness Veronica is corroborated by the declaration  of  the witness Dizon.  It will be remembered that Dizon was the sanitary inspector of the district in  which  the  deceased was killed and that he, although not a physician or surgeon, testified as an expert witness,  describing  as fully as he could  the wounds which  were  found upon the body of the deceased after  his death.  Such corroboration is claimed in the following particulars:
  1. Her testimony as to  the firing of the Remington rifle by Salazar is corroborated by the  witness Dizon, who testified  that two of the six wounds upon the body were larger than the other four, proving,  as he swore, that these two wounds were  caused by bullets from  the rifle, while  the other  four were caused by bullets from the revolvers.

  2. Her testimony  in relation to the claim that the  deceased was shot from behind is corroborated  by the testimony of the witness Dizon, who testified that, in his judgment, some of the wounds were made from behind because the wounds upon the front  of the body  were larger than those upon the rear, proving that he had been shot from behind because, as claimed by the witness  Dizon, the exit wounds made by gunshots  are  larger than  the  entrance wounds.

  3. Her testimony in which she asserts that the deceased was  shot while on his knees is  corroborated by the testimony of the witness Dizon, who said that the track of some of the wounds slanted downward in the body of the deceased, the exit wound being lower than the entrance wound.
As to the claim of the witness Dizon that two  of the wounds were made by the Remington rifle, which claim is based upon the alleged fact that two of the  wounds were larger than  the other four,  it must  be noted, in the first place, that it is nowhere claimed by the prosecution, unless the testimony  of this witness is  such claim, that two shots were fired from the Remington rifle.  In fact, the testimony of Veronica herself is to the effect that only  one shot was fired with the Remington rifle.  She testified to that fact positively and without equivocation.  There  is no other testimony in the case whatever  in relation to the number of times that the Remington rifle was fired.   It is evidence, therefore, that the witness Dizon or the witness Veronica was  mistaken  as to one of the alleged gunshot wounds at least.  In the  second place, it must be remembered  that it is the undisputed evidence of the case that the caliber of the revolvers used on that occasion was considerably larger than the caliber of the Remington rifle.  It is the  uncontradicted evidence that the caliber of the Remington rifle was  .443, while that of the revolvers was .45, and that the ball  carried by the revolvers was considerably larger and heavier than that carried by the rifle.  It is but natural to assume, therefore, in the absence of reliable evidence to the contrary, that the orifice made by the revolver ball would be appreciably  larger than the orifice made by the rifle ball. That such would  be  the case with inanimate objects at least was conclusively  demonstrated by the  experiments performed during the trial of the action,  in which shots were fired from the revolvers and from the rifle through paper targets and a thick board.  In every case the orifice or hole made in the paper and  in the board by the balls fired from the revolvers was appreciably larger than those made by the balls  from the rifle.  Moreover, Captain Gallant testified as an expert  in the use of firearms and declared  that  a  ball from the  Remington rifle in question, discharged at short range,  would not cause in  the human body as large an orifice, either  of entrance or of exit, as it would if discharged at long range, and that there would be,  at the range at which it was claimed that the deceased was shot, an appreciable difference between the size of the wounds caused by the Remington rifle  and the revolvers, those made by the  revolvers being larger than those caused by the rifle.  He also said that fired at  such a range there would  be no appreciable difference in  size between  the entrance and exit  wounds made by the rifle bullet, unless the bullet struck a bone.  It is probable,  therefore, from such evidence as is at  hand, that the witness Dizon  was entirely wrong in  his conclusion that, because  two of the wounds were in his opinion  larger than the others, those two must have been made by the Remington rifle.  Besides, the witness Vallejo, who testified for the defense and who, as we gain from his testimony, had had as much experience with gunshot wounds as the  witness Dizon, stated that he had carefully examined the gunshot wounds in the body of the deceased, and  that  those upon the front of deceased's body were all of equal size; that of the gunshot wounds upon the  back of  the deceased  all were of the same size, except one,  which  was considerably larger than the others; that this increased size of  that wound was  due to the  fact that the ball had  passed through the shoulder blade,  and, having, therefore, met  with  greater resistance, had made a larger hole.   He testified, moreover, that, with the exception of the  one wound referred  to, there was no difference in  the size  of the wounds in the front as  compared with those in the back.   He further stated that, in his judgment, all of the wounds were  made from the  front, basing that conclusion,  as  he testified, upon a minute examination  of the wounds.

As to the claim that the track of some  of the wounds was downward,  no  evidence has been given upon that point by the defense. The only evidence in the case is that given by the witness Dizon.  No  satisfactory explanation has been made of that feature of the case.   It does not seem  that one can be  made, except possibly on the theory that in the struggle which took place between  the defendants and the deceased, and with the consequent turning and twisting  of the bodies of the contestants, a bullet shot into the body  of the deceased might possibly have taken any one of a variety of directions.   Moreover, it is impossible to determine from the course  of the bullet  wounds, as shown in this case,  in what direction the weapons  from which the  bullets came were pointed.  In passing through the human  body a bullet meets so many things which may deflect it from its direct course  that, unless the  wound  is carefully probed  or an autopsy had, it is extremely dangerous to place too much confidence in general appearances.   While Dizon claims to have  probed the wound  in  question, this was admittedly done two or three days after death, at which time, as  is well known, probing a wound is most difficult and the results correspondingly uncertain.  Taken  in connection with all the circumstances, the direction of  the  bullet  wounds, although  extremely  important if fully  and  satisfactorily proved, does not carry,  we  think, weight sufficient  to influence  materially the  case against  the  defendants, or to assist materially  in rehabilitating the shattered testimony of the witness Veronica.

Upon the whole case as presented by  the evidence, it is clear that the credibility of Veronica as  a witness is completely destroyed  and that the fair weight of the testimony is to the effect that the deceased met his death in the manner and for the  reasons described by the defendants and not in the manner and for the  reasons  assigned by  the  witness Veronica.  These conclusions were reached by  the  court below.  In his decision he says;
"In the opinion of the court the  defendants can not claim exemption from criminal responsibility; but the court appreciates  in favor of both defendants two extenuating circumstances, that is to say, that of  race and that of the fact that the fatal act was immediately preceded by provocation and  threat, for the  court is unable to conceive  how  both defendants should have attacked the deceased if the latter had not provoked them really and truly attempting to obtain possession of the revolver of one of them."
Although the court below recited during the course of his decision some  of the circumstances which in his opinion, corroborated the testimony of Veronica, nevertheless, his final conclusion is based upon the fact that the death of the deceased resulted in the manner and for the reasons presented by the  defendants; and  while  in the judgment of the court the facts and circumstances set out by the defendants were not sufficient to exempt them wholly from criminal responsibility, nevertheless,  he found them to be true, and as true made them  perform the  office of an extenuating circumstance in order to reduce the penalty to be imposed upon the  culprits.  If he had found true the facts as set out by the witness Veronica, the  court  could not possibly have found the defendants  guilty of any crime  less than murder or have imposed any penalty less than death.  Under her testimony the crime was qualified by premeditation and attended with the aggravating circumstances of nocturnity, alevosia, and abuse of superior force.

There is nothing which would even justify  a suspicion that  he was killed by some artful process of elimination, as if he were a dangerous character.  The deceased in this case  was  killed almost within the pueblo of Rosales.  At the time of his death he and his  captors were so near to some of the inhabited houses of that pueblo that an ordinary conversation could be heard by the occupants of said houses. Veronica herself testified  that during the loud talk which she alleged occurred between the members of the party, the occupants of some of said houses became  frightened and ran away.  Moreover, if the testimony of Veronica is to be believed, the defendants, with the assistance of other members  of the party, prior to shooting the deceased, built a large bonfire in the middle of the  road which lit up  the locality with great clearness, and that it was in the middle of the  highway and in the bright light  of  this bonfire, in full view of all members  of the party and of any of  the inhabitants of that  portion of the  pueblo  who desired to turn  that way, that the  deceased  was compelled to  get down upon his knees and in that posture was shot to death. It seems incredible that men who contemplated the murder of  a  fellowman would be at  so great pains to advertise their crime to all  the world.   The chief feature attendant upon  the murder of a captive by his captors was the secrecy with  which the murder was committed and  the isolation of the locality in which it occurred.

The  question that  remains  for  consideration then  is whether or not the defendants were justified in killing the deceased under the law.

Article 8 of the  Penal Code reads  in part as follows: "The following  are  not delinquent and  are, therefore, exempt from criminal liability:

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

"(1)  Illegal aggression.

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

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


*    *    *    *    *    *    *

"6.  He who acts in defense of the person or rights of a stranger, provided  the first and second circumstances mentioned in number 4 are attendant and that the defender is not actuated by revenge, resentment, or other illegal motive.

*    *    *    *    *    *

"11. He who acts in the fulfillment of a duty or in  the legitimate exercise of a right, trade, or office."
We having found, in conformity with the finding of  the court below, that the testimony of Veronica is not entitled to credit, and that the deceased met his death in the manner described by the defendants and their witnesses, and  not in the manner  and for the reasons alleged by the prosecution, it fairly follows  from the evidence in the case:  (1) That there was an unlawful aggression  committed against the defendants  by the deceased; (2)  that  the defendants were in a position of extreme danger; (3) that the deceased was seeking to escape from a lawful arrest; and  (4) that they used only  such means as  were reasonably  necessary for their own protection and to prevent such escape.  It is unquestioned that the deceased seized the  revolver in  the hands of the defendant Salazar and sought by every means in his  power to gain possession of it.   It is unquestioned also that his purpose in  getting possession  of the revolver was to kill  the defendants,  at  least if  such an  act were necessary to succeed in  his attempt.  It is admitted that he was a man of unusually large stature and of extraordinary strength; that he was known to the defendants as a leader  of criminal bands and  as  an all-round desperado. They knew  also that  in a hand-to-hand struggle without weapons he was more than  a  match for both.  It is  apparent that  if the measures resorted to  by  the defendants to keep possession of the revolver had not been taken,  the deceased, by reason of his great physicial strength, would have gained control of the weapon.   This would have put the defendants  in the very gravest peril.  The situation at the time really resolved itself, to all intents and  purposes, into the  question whether it would be the deceased or  the defendants who would be killed.  While there were five men in the party, in addition to the deceased, the  two defendants were substantially alone at the time, it appearing from the evidence that the remaining members of the party, together with the witness Veronica, were a considerable distance to the rear and were occupied in taking care of the carabaos which had become frightened at the discharge of the firearms.  Under  all the circumstances of the case,  it may fairly be said that before assistance could come to the defendants from the other members of the party the deceased would have accomplished his purpose.

The defendants before shooting were not obliged to wait until the deceased had obtained complete possession or control of the weapon.   They were not required to do anything or refrain from doing anything which would increase their danger or enhance the opportunity of the aggressor to accomplish his end.  (U. S. vs. Mack, 8 Phil. Rep., 701; U. S. vs. Paras,  9 Phil. Rep., 367; supreme court of Spain,  25 September,  1875; U. S. vs. Herbert, 26  Fed. Cas., No. 15354a; State vs. Robertson, 50 La. Ann., 92;  25  Am. & Eng.  Ency. of  L., 273.)

Moreover,  the  deceased was under  arrest, pursuant  to the due service of a  lawful process charging him with the commission of a felony.  He was seeking to make his escape by force and violence, undoubtedly meditating the death of the defendants  in order to attain that end.   The situation of the  defendants   was correspondingly  critical.   They knew the character  and  strength of  the deceased; they knew his criminal record and propensities; they knew that if they  came under his  power their  lives were worthless; they knew  that the deceased, in attempting to obtain possession of the revolver, had their death in view; they knew also that he meant to  escape.  They saw clearly the absolute necessity of preventing  the  deceased from getting  possession  of  the revolver.   They  saw plainly that he was more than a match for both and that unless they had recourse to extreme measures he would get possession of the revolver. Prompt action was essential.  Under the influence of the furious  attack  and the  excitement into which they were thrown  by reason of  it, they had no time to think; no time for deliberate, careful judgment or nice calculation; no opportunity to devise means or lay plans.  Under such circumstances the law does not hold men to the standards of careful thought  and calm judgment, either in calculating the imminency of the  danger threatening them or in  discriminating as to the means they should employ to avert it. (Allen vs. U. S.,  150  U. S., 551; State vs.  West, 45 La. Ann., 14,  23;  Brownell vs. People, 38 Mich., 732;  supreme court of Spain, 7 December, 1886; Viada, Penal Code,  Vol. 1,  157-160.)

In  order  to make perfectly available the  plea of self-defense and in order that it may be found that the means employed  were reasonably necessary, it is not essential that there should be absolute and positive danger to the defendants.  If  there was  a  well-grounded and reasonable belief that they  were in imminent danger of death or great bodily harm, an attempt to  defend themselves  by  means  which appeared  reasonably necessary is justifiable.   The reasonable  appearance is  the  important thing.  (Shorter vs. People, 2  N. Y., 193,  197; Brown vs. Com., 86 Va., 466; Logue vs. Com., 38 Pa. St., 265; Murray vs.  Com., 79 Pa. St., 311,  317; Pond vs. People, 8  Mich., 150; Hurd vs. People, 25 Mich., 405; People vs. Miles, 55 Cal., 207; People vs.  Herbert, 61 Cal., 544; Canipbell vs. People, 16 Ill., 17; Enlow vs. State, 154 Ind., 664; Oliver vs. State,  17 Ala., 587; Stewart vs. State, 1 Ohio St., 66, 71; 25 Am. & Eng. Ency. of L., 262, 263; United States vs. Paras, 9 Phil. Rep., 367.)

In  deciding this case we must, under the law, put ourselves in the position of the defendants at the time  of the event. It is from their point of view that they are to be judged.  If they  honestly believed,  and had  apparently reasonable grounds for that belief, that the  life of  either of them was in  danger or that either was likely to  suffer great bodily harm, and that the means which they used to protect themselves were reasonably necessary to that end, they  can not be convicted.  (Viada, Penal Code, Vol. 1, 98; People vs. Bruggy, 93 Cal., 476; Harris vs.  State, 96 Ala.,  24; United States vs. Outerbridge, 5 Sawy, (U.  S.), 620.)

We are convinced  that the facts and circumstances of this case are sufficient to induce and support a belief in the minds of the defendants that their  lives were  in imminent danger and that the  means which they employed to avert that danger were reasonably necessary to that end.   (Supreme court of  Spain, 2 January,  1873; 5 April,  1873; 30 April, 1874; 31 May, 1879; 17 March, 1885; 26 November, 1886; 2 March, 1888; 4 April, 1889; 5 July, 1890; 6 December, 1890; 30 December, 1890;  11  February,  1896; 9 December, 1896; 24 May, 1898;  28 May,  1898; 10 December, 1898; 15 November,  1899; 9 January,  1900; 1  June, 1901; 16 April,  1902; 3 January,, 1903; 14 January,  1903; 20 March, 1903; 11 July, 1909; 26  October, 1904; 17 November, 1904; 20 October, 1904; 29  October, 1904; 8 March, 1905.)   In other words it would seem, under all the  circumstances, that it can not fairly be charged  that  the defendant acted otherwise than as  reasonable men wpuld have acted in the same circumstances,;  and after all this is the real test.   (Allen  vs. U. S., 150  U. S., 551; Hickory vs. U. S., 151 U. S., 303; Christian vs. State, 96 Ala., 89; People vs. Hurley, 8 Cal., 390; Gainey vs.  People, 97 111., 270; State vs. West, 45 La. Ann., 14.)

This court has gone very far in  the direction of liberality in laying down  the principles governing the plea of self-defense and the  means that may be legally employed to make that defense effective - very much further indeed than it is necessary to go to absolve the defendants in  the case at bar.

In the case of the United States vs. Brello (9 Phil.  Rep., 424) the court said:
"The evidence of the defendant  and his witnesses was to the effect that at 10 o'clock at night  Candelario came to  the house of the  defendant, knocked at the door, and insisted upon the defendant coming out, saying that if he did not he would burn the house.  The  defendant refused  to go out and thereupon Candelario broke the door down, came in and attacked the defendant with a cane, throwing him to the' ground  two or three times.  He defended himself as well as he could  and  finally seized a bolo  and struck Candelario in the stomach.  Immediately after the  affair the defendant presented himself  to thje authorities of the town stating what had happened.  It does not appear that Candelario had any other  weapon than a cane.

"These facts to our  mind constitute a complete defense. Candelario committed a crime in entering the house as he did.   The  defendant  was justified in protecting himself with such weapons as were at his hand, and if from that defense the death of  the aggressor  resulted,  that  result must be attributed to  his own wrongful act and can not be charged to the  defendant."   (The italics do not appear in the original.)
If the defendant in the above case was in danger of death or of great bodily harm,  and that danger was imminent, and if the means employed by him to repel the assault were reasonably necessary to attain that  result, how  much more perfectly were these conditions present in the case at bar. If the defendant in the case cited  was entitled legally to be relieved from all criminal liability, upon what  subtile distinction, and, above all, upon what principles of justice, shall we found a judgment  declaring guilty the appellants at bar?

In the case of the United States vs. Patala (2 Phil. Rep., 752) the court says (p. 756):
"It appears from the testimony of the defendant that at the time of the occurrence  he was cleaning fish on  board the steamship Compania  de Filipinos; that without any provocation on his part the deceased, who was  the cook of the boat, believing that  some of  the fish, was missing, slapped him and  kicked him; that not being satisfied with this, when the defendant started to run away from him the deceased  pursued him and attacked him with a knife; that the defendant,  taking advantage  of some  favorable chance during the struggle, succeeded in wresting the knife from the deceased and inflicted upon him a wound in the left side, from the result of which he died a few  hours later  *  *   *

"The aggression on the part of the deceased was in every respect unjustified, and  the defendant had a perfect right to repel the attack in the most adequate  form within his power under the critical circumstances of a sudden assault. *  *  *  He had reason to believe that  he was  placed in the alternative of killing or being killed when he was being attacked and pursued with a deadly weapon.   This was the only  weapon  used  during the struggle  and it  necessarily had to  be either in his  possession  or in the hands  of the deceased.  If through a fortunate accident he came into possession of the knife,  he could  have lost control of it through a similar accident and then found himself at the mercy of his assailant.   Therefore the act  of the defendant rendering his assailant powerless as well as he could under the critical circumstances of the moment, and repelling his aggression,  constitute, in our opinion, a true case of  self-defense, which exempts  the defendant from any  criminal liability under paragraph 4 of article 8 of the Penal Code."
It will be noted that in this case substantially all danger to the defendant had  passed when he secured possession of the knife.   His aggressor was  unarmed.  Yet  under  the critical  circumstances of a sudden assault the killing by the defendant of an unarmed man was wholly excused. Under the "critical circumstances of a sudden assault" the  defendants in the case at bar killed a man, a powerful desperado, who was  doing his best to procure means to kill them. Was their act more culpable than the act of the defendant in the case last cited ?

The same  doctrine is laid down in the similar case of the United States vs. Salandanan  (1 Phil. Rep., 478).   (See also U.  S. vs.  Brello,  9 Phil. Rep., 424; U. S. vs.  Reyes, 1 Phil. Rep., 517; U. S. vs. Bailon, 9 Phil. Rep., 161.)

We believe,  upon the whole case, that it may fairly be said  that  the  defendants  incurred no criminal responsibility.

The judgment of the court below is, therefore, reversed, with costs de oftcio.

Mapa, Johnson, Carson, and Elliott, JJ., concur.





DISSENTING
 

TORRES, J.,

Assuming as proven  the charges against the defendants in this case, Ponciano  Salazar  and Venancio Villanueva, under which they were convicted of the crime of homicide and each sentenced by the  Court of First Instance of Pangasinan to fourteen  years eight months and one  day of reclusion temporal, to the accessories, and to pay an indemnity and costs,  and even admitting,  in part, the legal reason stated in  the opinion of the majority of this  court, the undersigned regrets that he must dissent from the  conclusion which does not take into consideration the  second requirement of article 8,  paragraph 4, of  the Penal Code.

In view  of the facts considered as proven, it is admitted that  there was an unlawful  aggression by the  deceased, Felix Mendoza, and that there was no sufficient provocation on the part of the accused and their companions; but in view of the facts which have been admitted in the decision, it is not proper nor in accordance with the law, in the opinion of the undersigned,  to hold that there was a reasonable necessity for the means employed  in order to prevent or repel the expected attack of the deceased.

Felix Mendoza was under the custody of at  least four armed men, and upon  his attempting  acts of aggression against his conductors they certainly had  no reason to kill him,  because between the four of  them, they might very well have held him and made it impossible for him to move, since the prisoner had  not managed to seize the revolver which he tried  to take away from one of  them; therefore, there can be no question as to the fact that the accused exceeded their authority in the  means employed, which can not be held to have been reasonable, to prevent the aggression attempted by the deceased.

Nor can the  behavior of the accused be considered as altogether excusable, on account of the absence of one of the requirements  of  article 8, paragraph 4, of the Penal Code, and the exemption from liability of two of them is incomplete  and  rests only  on  the  provisions of article 86 of the said code; therefore a penalty inferior by one or two degrees should  be  imposed on the persons liable for the crime of  homicide, and, in this case, it should be that of the third  degree inferior to the one fixed by article 404, to wit, that of prision correctional in its medium degree, taking into account that, even  though the deceased were a  well-known and ferocious bandit, the punishment of his crimes appertains to the  courts alone, not to any private person whether or not he be invested with  the  character of an agent of the authorities.

For the reason above set forth,  it is my opinion that the judgment appealed from should be reversed, and  that the two persons herein accused should be sentenced, each of them, to suffer the penalty of four years of prision correccional, the accessory penalties of article 61, to jointly or severally  pay an indemnity of Pl,000 to the widow and heirs, with subsidiary imprisonment in case of insolvency, which should not, however, exceed one year,  and each to pay one-half of  the costs of both instances.


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