G.R. No. 1523. January 04, 1905

The defendant is charged with the crime of homicide. The finding of
the court below was, and it is our finding also, that the deceased,
without any provocation on his part, attacked the defendant, striking
him with his fists, and kicking him, and finally tried to choke him; at
this moment, a hand-to-hand fight having started between the defendant
and his aggressor, the former, who was a municipal policeman of the
town of Cabugao, Ilocos Sur, and who, by reason of his office, was
armed with a club, hit his aggressor on the head with it, as every
other means he had tried to get away from his hold had failed. The blow
caused the fracture of the skull of the deceased, which finally
resulted in his death three days after the occurrence.

The court below, although it does not say so in express terms,
considered the case within subsection 1 of article 9 of the Penal Code;
it did not consider the defendant to be totally exempt from criminal
liability, since, according to its view of the case, although it agrees
that there was an illegitimate assault on the part of the deceased and
lack of provocation on the part of the accused, yet the means employed
by the defendant to repel it were not reasonably necessary. For this
reason, the court, in accordance with article 86 of the Penal Code,
sentenced the defendant to three years of correctional imprisonment,
and to indemnify the heirs of the deceased in the sum of one thousand
pesos.

The public prosecution in this instance asks for the acquittal of
the accused, since all the circumstances required by subsection 4 of
article 8 of the Penal Code to constitute a case of self-defense,
exempting from criminal liability, concur in this present case.

We agree with the prosecution. As it says in its brief, when the
defendant gave the blow with the club which caused the death of the
aggressor, the latter had taken hold of the former by the neck, after
having beaten and kicked him; the defendant was armed with a club and a
knife, and instead of using the latter weapon he only used the former;
and in that position the defendant, with the natural excitement which
such an unexpected assault produces, could not defend himself otherwise
than as he did. If the defendant had intended to do something more than
to repel the aggression, he would have used the knife instead of the
club; but he did not do it. Above all, it must be taken in
consideration that the effect produce by the use of the club in this
instance is not that which it ordinarily produces.

Therefore, we revoke the sentence appealed from, hereby acquitting the defendant entirely, with costs in both instances de oflcio. So ordered.

Arellano, C. J., Torres, Johnson, and Carson, JJ.,concur.