FIRST
DIVISION
THE
UNITED STATES,
Plaintiff-Appellee,
G.
R.
No. 12936
January
10, 1918
-versus-
MARIANO
BATUNGBACAL,
Defendant-Appellant.
D
E C I S I
O N
AVANCEÑA,
J :
In the sitio of Balanga,
Province of Bataan, the defendant for the eight years had in his
service
the married couple Pedro Dilig and Hilaria Tianko. It appears that the
latter took care of two children of tender age belonging to the
defendant.
Although Pedro Dilig and Hilaria Tianko used to quarrel with each
other,
for, when the husband got drunk, he would beat his wife, yet they never
had any trouble with the defendant, by whom they were always treated
kindly
and paternally, as stated by the trial court.
On the morning of
February
25, 1917, the defendant, in his official capacity as councilor of the
municipality,
was inspecting the country roads. On his return home at noon he took
his
dinner, after which, as he felt a little tired, he laid himself down on
a native mat in the sala adjoining the kitchen, for the purpose of
resting.
There he fell asleep and was awakened only by the cries of Hilaria
Tianko,
who said: "Itoy, Itoy, [the defendant] get up. Pedro is chasing
us with his bolo in hand." The defendant raised himself and immediately
saw Hilaria Tianko and his two children, clinging to Hilaria's dress,
come
running from the kitchen, pursued by Pedro, who was infuriated and was
carrying a bolo in his hand. The defendant then seized a loaded shotgun
that was near him, aimed it at Pedro Dilig, ordered him to drop the
bolo,
and fired at him, killing him at once. Pedro Dilig received nine
wounds:
One, in the inner, middle part of his right arm, destroying the
brachial
muscles; and the other eight, all mortal, in the right mammillary
region.
The gun was loaded with a shell containing nine buckshot.
Dilig's conduct toward
his wife was due to the fact that on his arrival at the house he missed
some hen's eggs which his wife had eaten. Infuriated by this, he told
his
wife that he was going to give her a slash, and bolo in hand went
toward
the foot of the stairs, indicating by his attitude that he meant to put
his threat into execution. Hilaria tried to escape, and, seeing that
Pedro
would finally meet her, endeavored to struggle with him and wrest the
bolo
form his hand. As she did not succeed in this attempt, she started to
run
with the children toward the sala of the house, where the defendant was
sleeping, the woman and children being pursued by Dilig, bolo in hand,
and when she thought that her pursuer was about to strike her a blow
with
the weapon, she uttered the scream that awoke the defendant.
Article 8 of the Penal
Code exempts from criminal liability:
"5. Anyone who acts
in defense of the person or rights of his spouse, ascendants,
descendants,
or legitimate, natural, or adopted brothers of sisters, or of his
relatives
by affinity in the same degrees, and those by consanguinity within the
fourth civil degree, provided that the first and second circumstances
prescribed
in the next preceding paragraph are present, and the further
circumstance,
in case the provocation was given by the person attacked, that the one
making defense had no part therein.
"6. Anymore who acts
in defense of the person or rights of a stranger, provided that the
first
and second circumstances mentioned in paragraph four are present, and
the
further circumstance that the person defending be not actuated by
revenge,
resentment, or other evil motive."
Paragraph 4, of the same
Article to which Paragraph 5 provided that the following circumstances
concur:
"(1) Unlawful
aggression;
"(2) Reasonable
necessity
for the means employed to prevent or repel it;
"(3) Lack of
sufficient
provocation on the part of the person defending himself."
The
trial court held that
the evidence disclosed no facts whereby the conclusion might reasonably
be reached that the defendant made use of the shotgun as a necessary
means
to avoid any harm; and that the exempting circumstances mentioned ought
not to be reckoned in the defendant's favor. Batungbacal was,
therefore,
sentenced for homicide to 14 years 8 months and one day of reclusion
temporal, to indemnify the heirs of the deceased in the sum of
P1,000,
and to pay the costs of the trial.
From this judgment
the defendant appealed.
In this instance, the
sole question raised is whether there should be credited in the
defendant's
favor the exempting circumstances of having acted in lawful defense of
his two children and Hilaria Tianko.
In not allowing these
exempting circumstances, the Court took the ground that the deceased
did
not assume an aggressive attitude toward anybody and did not raise the
bolo he was carrying, in any way to indicate that he intended to strike
his wife and the defendant's two children.
Even supposing that
the facts were such as the Court admitted they were, it should be held
that the defendant acted in lawful defense of his two children and
Hilaria
Tianko. The deceased was infuriated and was pursuing Hilaria Tianko and
the defendant's two little children, and this is enough to imply that,
under the circumstances of this case, he performed an act of
aggression,
because, as a general rule, the person who pursues another with the
intent
and purpose of assaulting him does not raise his hand to discharge the
blow until he believes that his victim is within his reach. The mere
fact
that a person carrying a bolo pursues another may signify the pursuer's
intention to assault with this weapon. In order that the assault may be
repelled, it is not necessary that it have been actually perpetrated;
it
is sufficient that there be an attempted assault, in order that the
right
may arise to prevent the assault. The law protects with this exemption
from liability, not only the person who repels an aggression, but even
the person who tries to prevent an aggression that is expected.
Moreover, the evidence
sufficiently shows that the deceased, when he was shot, had his right
hand
in which he held the bolo, raised and drawn back considerably, in an
attitude
such as is ordinarily assumed when one endeavors to strike a blow. The
shotgun which the defendant discharged at the deceased was loaded with
a cartridge that contained nine buckshot, and the deceased received
nine
wounds, each of which apparently was made by one of the nine bullets.
The
defendant testified that when he shot at the deceased, he was in front
of the latter. The president of the municipal board of health, who
examined
the deceased's wounds, testified that the defendant, when he shot, must
have been "a little to one side." The Constabulary captain, A. L.
Estelle,
also presented as a witness for the prosecution and who likewise
examined
the deceased's wounds, testified that Pedro Dilig, when he was shot,
must
have had his right side turned toward the defendant. The wound received
by the deceased in the arm was, according to the certificate issued by
the president of the board of health, in the middle and inner part of
the
arm. All of that testimony precludes the supposition that the deceased,
when he was shot, was holding his arm at his side, in a normal, hanging
position, because, in this position, the inner part of the arm would be
protected and would not be like a target, if the shot came from the
front,
and, more especially, if it was fired from the right side. In that
position,
the wound would have been made in the outer part of the arm.
The hypothesis that
one of the buckshots passed through the deceased's body and embedded
itself
in his arm, offered with the purpose of conciliating this location of
the
wound with the supposition that the deceased had his arm hanging in its
natural position, cannot be accepted. To do so, we should also have to
accept arbitrarily the other hypothesis that only seven, and not nine,
buckshots took effect, for, in this latter case, the deceased would
have
had eleven, instead of only nine, wounds. It would also be necessary to
admit that the shot came from the left side, which is contrary to the
testimony
given by the prosecution's own witnesses.
The location of this
wound in the arm, under the circumstances in which it was inflicted, is
only compatible with the supposition that the deceased, when he was
shot,
had his right arm raised backward, because only in this position could
the inner part of this arm be hit by a bullet coming from in front or
from
the right side.
If, in order to
consider
that a defendant acted in lawful defense, it is sufficient that he had
well-founded reasons to believe that, under the attendant
circumstances,
the means employed by him to prevent or to repeal the aggression, was
necessary,
then the defendant in this cause undoubtedly acted in lawful defense of
Hilaria Tianko and his two children. Abruptly awakened by the
information
that Hilaria Tianko and the defendant's two children were being pursued
by the deceased, and, upon awakening seeing that the deceased in fact
was
pursuing them, bolo in hand and with his arm raised as if ready to
strike
with this weapon, the defendant was justified in believing that the
lives
of Hilaria and his two children were in imminent danger. Under these
circumstances,
in view of the imminence of the danger, the only remedy which could be
considered reasonably necessary to repel or prevent that aggression,
was
to render the aggressor harmless. As the defendant had on hand a loaded
shotgun, this instrument was the most appropriate one that could be
used
for the purpose, even at the risk of killing the aggressor, since the
latter's
aggression also gravely threatened the lives of the parties assaulted.
It could not be required that the defendant engage in a hand to hand
struggle
with the aggressor, because not only would such a struggle have added
to
the danger already impending against the lives of Hilaria and his two
children,
the danger to his own life, but also it would have been of very
uncertain
results, as might be expected in an unequal struggle between two
combatants,
one of whom is armed and the other is not.
We have stated that
the defendant was justified in believing reasonably that the lives of
his
two children and that of Hilaria Tianko were in imminent peril. But we
can say more. We agree that Hilaria Tianko's life was in fact in
imminent
peril. The deceased, from the kitchen stairs, had already resolutely
assaulted
her with a bolo, and she was able to escape the blow only by having
taken
timely flight with the children. Undoubtedly, if the deceased had
overtaken
Hilaria in the sala of the house, where the defendant was sleeping, the
aggression would have been consummated there. The danger, as regard the
person of Hilaria Tianko, was not apparent in the defendant's mind,
under
the circumstances surrounding him, but it was also a real danger.
For the foregoing
reasons,
and in consideration of the fact that according to the evidence, the
assaulted
parties did not provoke the assault, nor was the defendant moved by
sentiments
of revenge or resent, or any other unlawful motive, and finding that
the
defendant acted in lawful defense of the persons of his two children
and
Hilaria Tianko, We hold that he should be exempted from criminal
liability,
and We acquit him with the costs de officio. So ordered.
Arellano, C.J.,
Torres, Johnson, Araullo, Street. and Malcolm JJ., concur. |