UNITED STATES VS. AH CHONG

Good Law

  G.R. No. 5272, March 19, 1910 THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. AH CHONG, DEFENDANT AND APPELLANT.

D E C I S I O N

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the  circumstances  surrounding the  incident upon  which these proceedings rest, no  other evidence as  to these facts was available either to the prosecution or to the 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 disclosed by  the record  may be taken  to be substantially correct:

The defendant, Ah  Chong, was employed as a cook  at "Officers' quarters,  No. 27," Fort McKinley, Rizal Province, and at the  same place Pascual Gualberto,  deceased, was employed as a house boy or muchacho.  "Officers' quarters No. 27" is a  detached house situated some 40 meters from the nearest building, and  in August, 1908,  was  occupied solely as an  officers'  mess or club.  No  one slept  in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of  which opened upon  a narrow porch running along the side  of the building, by which  communication was had with the other part of the house.   This porch was covered by a  heavy growth of vines for its entire length and height.   The door of the room  was not furnished with a permanent bolt or lock, and the occupants,  as  a measure of  security, had attached a small hook or catch on the inside of the  door, and were in the habit  of reinforcing  this somewhat insecure means of fastening the  door by placing against it a chair. In  the room there was  but  one small window, which, like the door, opened on the porch.  Aside from the door and window, there  were no  other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had  retired for the  night, was  suddenly awakened by someone trying to force open the door of the room.  He sat up  in bed and  called out twice,  "Who  is there?"   He heard no 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 along the  front of  the porch, the room was very  dark, and the defendant, fearing that the  intruder was a robber or a thief, leaped to his feet and called out. "If you enter 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 confusion the defendant thought that the blow had been inflicted  by the person who 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 porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who  immediately recognized him in the moonlight.  Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to  secure bandages to bind up Pascual's wounds.

There  had been several  robberies in Fort McKinley not long prior to the date of the  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 deceased and the accused, who roomed together and who  appear to have  been on friendly and amicable terms prior to the fatal incident, had an understanding that when either  returned at night, he should knock at  the door and acquaint his companion with his identity.   Pascual  had left the house early  in  the  evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibanez, servants employed at officers' quarters No. 28, the nearest house  to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27.  A few  moments after the party separated, Celestino  and Mariano heard cries for assistance  and upon returning to  No. 27 found Pascual sitting on the back steps fatally wounded in  the stomach, whereupon  one of them ran back to No. 28 and called Lieutenants 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 that he did  it  under the impression that  Pascual was "a  ladron" because he forced open the door of their  sleeping room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascual  suggests itself,  unless it be that the boy  in a  spirit of  mischief was playing a  trick on his Chinese roommate, and sought to frighten him by forcing his way into the room, refusing to give his  name  or say who  he was, in  order to make Ah Chong believe that he was being attacked by a robber.

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.

The defendant was charged with the crime of assassination,  tried, and  found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law.

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 a wrongful act, in the exercise of his lawful right of self-defense.

Article 8 of the  Penal Code  provides that -

"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."

Under these provisions 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.   No one, under 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 thrice-repeated warning to desist, and his threat that he would kill the intruder  if he persisted in his attempt, it will not be questioned that  in the darkness of  the  night, in a small room, with no means of escape, with the thief advancing upon him despite his warnings, defendant would have been wholly justified  in using any  available 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.

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 in real danger at the  time when 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.

The question  then squarely presents  itself, whether in this jurisdiction one can be 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 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 this question we think there can be but one answer,  and we hold that under such circumstances there is no  criminal  liability,  provided  always that the alleged ignorance or mistake of fact was not due to negligence or bad faith.

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 ingredient of the offense charged (e. g., in larceny, animus furendi; in murder, malice; in  crimes and misdemeanors generally some degree  of  criminal intent)  "cancels the  presumption of intent," and  works  an acquittal; except in those cases where  the circumstances  demand a  conviction  under the penal provisions touching criminal negligence; and in cases where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdemeanor 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 and  cases cited; McClain's Crim.  Law, sec. 133 and cases cited; Pettit vs. S.,  28 Tex. 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.)

The general proposition thus stated hardly admits of discussion,  and the only question worthy of consideration is whether malice or criminal intent is an essential 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 these as well as most  other  crimes  and  offenses  therein defined, do  not specifically and expressly declare that the acts constituting the crime or offense must  be 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 subjects the actor  to the penalties described therein, unless it appears that he  is exempted from liability  under one or other of the express provisions of article 8 of the code, which treats of exemptions.  But while it is true that contrary  to the  general rule of legislative enactment in the United  States, the definitions of crimes and offenses as set  out in the Penal  Code rarely contain provisions expressly declaring that malice or  criminal intent is an essential  ingredient of the crime, nevertheless, the general  provisions of article 1 of the code clearly indicate  that malice, or criminal intent in  some form, is an essential requisite of all crimes and offenses therein defined, in the  absence of express provisions modifying the general rule, such as are those  touching liability resulting from acts negligently or imprudently committed, and acts done by one voluntarily committing a crime  or  misdemeanor, where  the act committed  is  different  from that  which he intended to  commit.  And it is to be  observed that even these exceptions are more  apparent than real, for "There is little distinction, except  in degree, between  a will to do a wrongful thing and indifference whether it is done or not. Therefore carelessness is criminal, and within limits 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 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 disposition to do harm, which the criminal shows by committing it, and since this disposition is greater or less in  proportion to the harm which is done by the crime, the consequence is  that the guilt of the  crime follows the same  proportion; it  is greater or less according as the crime in its own nature does greater or less harm"  (Ruth. Ints. C. 18, p.  11); or, as  it has been otherwise stated, the thing  done, having proceeded from a corrupt mind, is to be  viewed the same whether the corruption  was of one particular form or another.

Article 1  of the Penal Code is  as follows:

"Crimes or misdemeanors are voluntary acts and omissions punished by law.

"Acts and omissions punished by law are always  presumed to be voluntary unless the contrary shall appear.

"Any person  voluntarily committing a crime  or misdemeanor shall incur criminal  liability,  even  though the wrongful act committed be different from that which he had intended to commit."

The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as used in this article, says that a voluntary act is a free, intelligent, and intentional act, and roundly asserts that  without intention  (intention to do wrong or criminal  intention) there can be no crime; and that the word  "voluntary" implies and  includes the words "con malicia," which were expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the code of 1870, because, as Pacheco insists, their  use in the former code was redundant, being implied and included in the word "voluntary."  (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was  actually intended to be done was in itself a lawful one, and in the absence of negligence or imprudence,  nevertheless admits and recognizes in his  discussion of  the  provisions of this article of the code that in general without intention there  can be no crime.   (Viada,  vol. 1,  p.  16.)  And, as we  have shown above, the exceptions insisted upon by Viada are more apparent than  real.

Silvela, in  discussing the doctrine herein laid down, says:

"In fact,  it is  sufficient to  remember the  first article, which declares that where there is  no intention there is no crime  * *   *  in  order to  affirm, without  fear of mistake, that under our code there  can be no crime if there is no act, an  act which must fall within the sphere of ethics if there is no moral injury."   (Vol. 2, The Criminal Law, folio 169.)

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  language:

"It is necessary that  this act, in  order  to  constitute a crime, involve all the  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,  whatever may be the  civil effects of the inscription of his three sons, made by the appellant  in the civil registry and in  the parochial church, there can be  no crime because of the  lack of the  necessary element or criminal intention, which characterizes every action  or  omission punished by  law; nor is he  guilty of criminal negligence."

And to  the same effect in its sentence of December 30, 1896,  it made use of the following language:

" *   *  *  Considering  that the moral element of the crime, that is, intent or malice or their absence  in the commission of an act denned and punished by law as criminal, is  not a necessary question of fact submitted to the exclusive judgment and decision of the trial court."

That the author of  the Penal Code deemed criminal intent or malice to be  an  essential  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:

"He who shall execute through reckless negligence an act that, if done with malice, would constitute a grave crime, shall be punished with the penalty of arresto mayor in its maximum  degree, to prision correccional  in its minimum degree, and with arresto mayor in its minimum and medium degrees if it shall constitute a less grave crime.

"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 medium and maximum degrees.

"In the application of these penalties the  courts shall  proceed according to their discretion, without  being subject to the rules prescribed in article 81.

"The provisions of this article shall not be applicable if the penalty prescribed  for the crime is equal to or less than those contained  in the first  paragraph thereof, in which case the courts shall apply the next one thereto in the degree which they may consider proper."

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.

The word "voluntary" as used in article 1 of the Penal Code would seem to  approximate in meaning the word "willful" as used  in English and American statutes to  designate  a form of  criminal intent.  It has been said  that while the word "willful" sometimes means  little more than intentionally or designedly, yet  it is more frequently understood to extend a little further and approximate the  idea of the milder 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" or "causelessly;" in another, "without reasonable grounds to  believe the  thing 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 American statutes defining crimes "malice,"  "malicious,"  "maliciously," and "malice aforethought" are words indicating  intent, more  purely technical than "willful" or "willfully," but "the difference between them is not great;" the word "malice" not often being  understood to require  general malevolence toward a particular individual, and signifying rather the intent from which flows any unlawful and injurious act committed without legal justification.   (Bishop's New Criminal Law,  vol. 1, sees. 428 and 429, and cases cited.)

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," "with malice aforethought,"  or in one of the various modes generally  construed to imply a criminal intent, we think that reasoning  from general  principles it will always be found that,  with the rare exceptions hereinafter  mentioned, to constitute  a crime evil intent  must combine with an act. Mr. Bishop, who supports his position  with numerous citations from the decided cases, thus forcefully presents this doctrine:

"In no one thing does criminal jurisprudence differ more from civil than in 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 crime proceeds only from a criminal mind.  So that -

"There can  be  no crime, large or small, without an evil mind.  In  other words,  punishment  is  the  sequence  of wickedness, without which it can not be.   And neither in philosophical speculation nor in religious or moral sentiment would any  people  in any age allow that a man should be deemed guilty 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 exist.   We find this  doctrine confirmed by -

"Legal maxims. - The ancient wisdom of the law, equally with the modern, is distinct on this subject.  It consequently has supplied to us such maxims as Actus non facit  reum nisi mens sit rea, 'the act itself does not make  a man guilty unless his intention were so;' Actus me invito factus non est meus actus, 'an  act done by me against my will is not my act;' and others of the like sort.  In this, as just said, criminal jurisprudence differs from civil.  So  also -

"Moral science and moral sentiment teach the same thing. 'By reference to the intention,  we inculpate  or exculpate others or ourselves  without  any respect to the happiness or misery actually produced. Let the  result  of an action be what it may, we hold a man guilty simply on the ground of intention; or, on the same ground, we hold him innocent.' The calm judgment  of mankind keeps this doctrine among its jewels.  In times of 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 voice that where the mind is pure,  he who differs in act from his neighbors does not offend.  And -

"In  the  spontaneous judgment which springs from the nature given  by God to  man,  no one deems another to deserve punishment for what he did from an upright mind, destitute of every form of evil.  And whenever a person is made to suffer a punishment which the community deems hot his due, so far from its placing an evil mark upon him, it elevates him to the seat of the martyr.  Even  infancy itself spontaneously pleads the want of bad  intent in justification  of what  has the appearance  of wrong, with  the utmost confidence that the plea, if its truth is credited, will be accepted as good.  Now these facts  are only the voice of nature  uttering one of her  immutable 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 be punished as a criminal unless his intent is wrong."   (Bishop's New Criminal Law, vol. 1, sees. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent departure from this doctrine of abstract justice results from the adoption of the arbitrary rule that Ignorantia juris non excusat  ("Ignorance of the law excuses no man"), without which justice could  not be administered in our tribunals; and compelled also by the same doctrine of necessity, the courts have  recognized the  power  of the legislature to forbid, in a limited class of cases, the doing of certain acts, and to make their commission criminal without regard to the  intent of the doer.   Without discussing these exceptional cases at length, it is  sufficient here to say that the  courts have  always held that unless the intention of the lawmaker to  make the  commission of certain acts criminal  without regard to the intent of the doer  is clear and  beyond question the  statute will  not be so  construed (cases cited in Cyc, vol. 12, p. 158,  notes 76 and 77) ; and the rule that ignorance of the law excuses no man has been said not to be a real  departure  from the law's fundamental principle that crime exists only where  the mind  is at fault, because "the evil purpose need not be to break the law, and it 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.)

But, however this may be, there is no technical rule, and no pressing  necessity therefor, requiring mistake  in fact to be dealt with otherwise  than in  strict accord with the principles of abstract justice.   On the  contrary, the maxim here is Ignorantia facti excusat ("Ignorance or  mistake in point of fact is, in all cases of supposed offense, a sufficient excuse").  (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an  inseparable element in every crime, any  such mistake of fact as shows  the act committed to have proceeded from  no sort  of evil  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 guilt of the accused must depend on the circumstances as they  appear to him."   (Reg. vs. Thurborn, 1 Den. C.  C, 387; P. vs. Anderson, 44 Cal., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb., 625;. Reg. vs. Cohen, 8 Cox C. C, 41; P. vs. Miles, 55 Cal., 207,  209; Nalley vs. S., 28 Tex. Ap., 387.)   That is to say, the question as to whether he  honestly, in good faith,  and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the  time when the mistake was made,  and the effect which the surrounding circumstances might  reasonably  be  expected to have on his mind, in forming the intent, criminal or otherwise, upon which he acted.

"If,  in language not  uncommon  in the  cases, one  has reasonable cause to believe the existence of facts which will justify  a  killing - or, in terms more, 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 homicide; though he mistook the facts, and so the  life of  an  innocent  person  is unfortunately  extinguished.   In other words, and with reference to the right of self-defense and the not quite harmonious authorities, it is the doctrine of reason, and sufficiently sustained  in adjudication, that  notwithstanding some decisions apparently adverse, whenever a man undertakes  self-defense, he is justified in acting on the  facts as they appear  to him.  If, without fault or carelessness, he is misled  concerning them, and  defends himself correctly according  to  what he thus supposes the facts to be, the law will not punish him though they are in  truth otherwise,  and he has really no occasion for the  extreme measure."   (Bishop's New Criminal Law, sec. 305, and large array of cases there cited.)

The  common  illustration in the  American and English textbooks of the application of this rule is the case  where a man,  masked  and disguised as a footpad, at night and on a lonely road, "holds up" his friend 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 that the attack is a real one, that the pistol leveled at his head is loaded, and that his life and property are in imminent danger at the hands of the aggressor.  No one will 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, although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination.  Under such circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent,  and (since  malice  or  criminal intent is a  necessary  ingredient of the "act punished by law" in  cases of homicide or assassination) overcomes at the same time the  presumption established in  article 1 of the code, that the  "act punished  by law" was committed "voluntarily."

Parsons, C. J., in the Massachusetts court, once said: "If the party killing had reasonable grounds for believing that the person slain had a felonious design against him, and under that supposition killed him, although it should afterwards  appear  that there was no such design, it will not be murder,  but it will  be either manslaughter or excusable homicide, according to the degree  of caution used and the probable grounds of such belief."   (Charge to the grand  jury in Self ridge's  case, Whart.  Horn., 417, 418, Lloyd's report of the case, p. 7.)

In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:

"A, in the peaceable pursuit of his affairs, sees B  rushing rapidly toward him, with an outstretched arm and  a  pistol in his hand, and using violent menaces against his life as  he advances. Having approached near enough in the same attitude, A, who has a club in his  hand, strikes B over the head before or at the instant the pistol is discharge; and of the wound B dies. It turns out the pistol was loaded with powder only, and that the real design of B was only to terrify A.  Will any reasonable man say that A is more criminal than he would have been if there had been a bullet in the pistol?  Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop  and ascertain how  the pistol is loaded - a doctrine which 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 judge of the reasonable grounds of  his apprehension,  no danger can be supposed to flow from this principle."   (Lloyd's Rep., p. 160.)

To the same effect are various decisions  of the supreme court of  Spain, cited by Viada, a few of which are here set out in full  because the facts are  somewhat analogous to those in the case  at bar.

"Question III. When it  is shown  that the accused was sitting at his hearth, at night, in company only of his wife, without other  light than  that reflected from the fire, and that the man with his  back to the door  was attending to the fire, there  suddenly entered a person  whom he did  not see or know, who struck him one or two blows,  producing a  contusion on the shoulder, because  of  which  he turned, seized the person and took  from him the stick with which he had undoubtedly been  struck, and gave the unknown person a blow, 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 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 in consequence of cerebral congestion resulting from  there blow.  The accused, who confessed  the facts, had always sustained  pleasant relations with  his father-in-law, whom he visited during  his sickness, demonstrating great grief over the occurrence.  Shall  he be considered free from criminal  responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code?   The criminal branch of the Audiencia of Valladolid found that  he was an illegal aggressor, without sufficient  provocation, and  that there did not exist rational necessity for the 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 accessory penalty and costs.  Upon appeal by  the accused, he was acquitted  by the supreme court, under the following sentence:  'Considering, from the facts found by the sentence to have been proven, that the accused was surprised  from behind, at night, in his house beside his wife, who was nursing her child,  was attacked, struck, and beaten, without being able to distinguish the person or persons attacking, nor the instruments with  which they might have  executed  their criminal intent, because of the fact that  the attack  was made  from behind  and because there was no other than fire light in the room, and considering 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 himself, and in doing so with the  same stick with which he was attacked, he did not exceed the limits of self-defense,  nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and  was capable of producing death, and in the darkness of the house and the consternation which naturally resulted from such strong aggression, it was not given him to  know or distinguish whether there  was one or more  assailants, nor the arms which they might bear, nor that which they might  accomplish, and considering that the  lower court did not find from the accepted facts that there existed rational necessity for the means  employed, and  that it  did not  apply paragraph 4 of article 8 of the Penal Code,  it erred,  etc.'  (Sentence of supreme  court  of Spain,  February  28,  1876.)" (Viada, Vol. I, p. 266.)

"Question XIX. A  person  returning, at night,  to  his house, which was  situated  in  a retired  part  of the city, upon  arriving at a point where there was no  light, heard the voice of a man, at a distance of some 8 paces, saying: 'Face down, hand over your money!' because of which, and almost at the same  moment, he  fired two shots from his pistol, distinguishing immediately the voice of  one of his friends (who had before simulated a different voice) saying, 'Oh! they have killed me,' and hastening to his  assistance, finding the body lying upon the ground, he cried, 'Miguel, Miguel, speak, for God's sake, or I am ruined,' realizing that he had been the victim of a  joke, and not receiving a reply, and observing that his friend was a corpse, he retired from the place.  Shall he be declared exempt in toto from responsibility as the author of this homicide,  as having acted in just self-defense under the circumstances defined in paragraph 4, article 8, Penal Code ? The criminal branch of the Audiencia of Malaga did not so find, but only found in favor of the accused two of the requisites of said article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the  accused to eight years and one day of prision mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that  under  the circumstances, the darkness and remoteness, etc., the means employed were rational  and the shooting justifiable.  (Sentence supreme court, March 17, 1885.)"  (Viada, Vol. I, p. 136.)

"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 delivery of all of his money, otherwise his house would be burned' -  because of which, and observing in an alley adjacent to the mill  four individuals,  one of whom addressed  him with blasphemy, he fired his pistol at  one of the men, who, on the next morning was found dead on the same spot.  Shall this  man be declared exempt from criminal responsibility as having  acted in just self-defense with all of the requisities of law?  The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites  to  exempt him from criminal responsibility, but not that  of reasonable necessity for the means, employed, and condemned the accused  to  twelve months of prision correccional for the homicide committed. Upon  appeal, the supreme court acquitted the condemned, finding that the accused,  in firing at the  malefactors, who attacked his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family.   (Sentence of May 23, 1877)."  (I Viada, p.  128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman  struck the fatal blow alleged  in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he  was in  imminent peril, both of his life and of his property and of the property committed  to his charge;  that in view of all the circumstances, as they must have presented themselves to the defendant at  the time,  he  acted in good  faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his  act; and that he can not be said to  have been guilty of negligence or recklessness or even carelessness  in falling into his mistake as to the facts, or in the means adopted by him to defend himself from the imminent danger which he believed threatened his person and his property and the property under his charge.

The  judgment of  conviction and  the sentence imposed by the trial court should be reversed, and the defendant acquitted of the crime with which he is  charged and his bail bond exonerated, with the costs  of both  instances de oficio.   So ordered.

Johnson, Moreland, and Elliott, JJ., concur.

Arellano, C. J., and  Mapa,J., dissent.

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