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[ GR No. 22791, Feb 28, 1925 ]



47 Phil. 509

[ G.R. No. 22791, February 28, 1925 ]




The defendant was charged with the crime of homicide in the Court of First Instance of Nueva Vizcaya for the killing of Mariano Tugab, upon which he was tried, convicted and sentenced to imprisonment for twelve years and one day, to indemnify the heirs of the deceased in the sum of P500, and pay the costs.

On his appeal, he makes the following assignments of error:

"I. The court below erred in finding that Maria Cerizo, wife of the deceased, had illicit relation with the accused during the time the latter was boarding with and in the house of the deceased.

"II. The court erred in finding that, when the deceased assaulted the accused with an iron knuckle, indicated that his wife was in the act improper, for a married woman.

"III. The court erred in finding that the accused, Leonardo Cruz, gave provocation to the deceased by attempting to offend the honor of the wife of the latter, and by abusing upon the confidence reposed on him by the deceased in permitting him to live in their house.

"IV. The lower court erred in not finding that the accused acted in pure self-defense with all the circumstances that exempts him from criminal responsibility as provided for in circumstance 4, section 8 of the Penal Code and in not acquitting him from the crime charged."


The testimony is conclusive that the defendant killed Mariano Tugab. In fact the defendant testified that he fired the four shots which wounded the deceased, and the attending physician testified that the wounds were fatal. The defendant claims that he acted in self-defense.

The evidence for the prosecution tends to show that for more than a year, the defendant was boarding in the home of the deceased and his wife in the municipality of Bayombong, Province of Nueva Vizcaya, where he was working in the office of the Bureau of Lands as a computer. That later after the office was removed to the town of Solano, he continued as a partial boarder going back and forth on his bicycle for the week end. It also appears that at different times on week days, the defendant went to the home of the deceased when the latter was away, and to say the least that there was more than ordinary affection between the defendant and Maria Cerizo, the wife of the deceased. Their actions and conduct aroused the suspicions of the deceased, and on the night of September 4, 1923, at about 8 p. m., he went to the house of Panganiban and his wife where he had supper. On leaving there he said to them that he would go secretly under his own house and listen. Soon thereafter both Panganiban and his wife heard the deceased exclaim in a loud voice: "Now, I have caught you in the foolish acts that you are doing," which was followed immediately by the voice of the wife of the deceased, who said: "Of the foolish acts that we are doing, as you say, you may file a complaint." Four or five revolver shots were immediately fired which were distinctly heard, and when the officers came, they found the dead body of the deceased lying in the hall of his own home. On the bed which was used by the defendant was found the baby's milk bottle with the nipples on it. The defendant, in explaining the presence of the bottle there, claimed that he placed it on his bed while attending to the baby of Maria Cerizo. But in testifying before the court, he denied having put the baby on his bed at any time during that day. It appeared to the officers that Maria Cerizo was very calm and serene, and that there was no evidence of any weeping or sorrow.

Andres Cerizo, a brother of Maria, upon hearing the shots, left his house at once, which was at a short distance away, and ran to his sister's home, Maria Cerizo, the wife of the deceased, and found her embracing the defendant and holding his hand in which he had the revolver, and that he had trouble in taking the revolver away from the defendant.

The defendant claims that on September 3d he was feeling sick, and that he left his office in Solano and returned to the home of the deceased in Bayombong, where he laid in bed most of the day of September 4th. At about 8 p. m. and while asleep, he was attacked by the deceased, who struck him several blows on the face and held him by the neck, and that in self-defense and because of the unexpected attack, he took his revolver from under his pillow and fired the fatal shots into the body of the deceased who fell dead almost immediately at the foot of the bed where the defendant was lying. It also appears from his own evidence that the defendant did not see any weapon or instrument at the time of the alleged attack, but that on the same evening, the authorities found a pair of brass-knuckles near the body of the deceased.

There is no merit in the plea of self-defense.

The deceased was killed in his own home as a result of four shots which the defendant fired into his body. There is no evidence of any serious struggle or that any injury or bodily harm was inflicted on the defendant.

It is very apparent that, through his opportunities as a boarder, the defendant had stolen the affections of the wife of the deceased husband, and to say the least, that the deceased had reasonable grounds for his suspicions. It may be that the feelings of the husband were outraged, and that his anger was aroused and that though unarmed, he might have or would have attacked the defendant. Be that as it may, he was in his own home and under no conditions were the four shots fired in self-defense. The defendant admits that after he was attacked, he took his revolver from under the pillow and fired the shots. Assuming that an attack was made, it must not have been very vigorous or forcible. Otherwise, the defendant could not have so easily obtained his revolver. Again, it appears from the defendant's own testimony that he did not see the weapon or instrument, if any, which the deceased had.

There is no evidence tending to show that the defendant was in any serious danger. Neither is there any merit in the grudge which the deceased is alleged to have held against the defendant. It is very apparent that the alleged claim was manufactured as a defense.

The sentence of the lower court is twelve years and one day of imprisonment. It not appearing that there was either an aggravating or mitigating circumstance, the penalty should be in the medium degree, which is from fourteen years, eight months and one day to seventeen years and four months. The amount of the indemnity was only P500.

For such reasons, the judgment of the lower court will be modified, and one will be entered here, sentencing the defendant to imprisonment for fourteen years, eight months and one day, reclusion temporal, and to indemnify the heirs of the deceased in the sum of P1,000, and in all other respects, the judgment of the lower court is affirmed, with costs. So ordered.

Malcolm, Villamor, Ostrand, and Romualdez, JJ., concur.
Johnson, J., dissents.