G.R. No. 2106. December 08, 1905

In an information filed in the Court of First Instance of Zamboanga
on July 8,1904, Jose R. Padilla, an enlisted man of the Constabulary,
was charged with the crime of homicide, in that while acting as sentry
at the barracks in Isabela de Basilan, on the 6th day of July, 1904, he
killed Emiliano de los Santos by firing a shot at him with his rifle,
under the circumstances set forth in the information, an act
constitutive of the crime of homicide committed within the jurisdiction
of the said court, and contrary to law.

As a result of the cause formulated upon the information, the judge
sentenced the defendant to twelve years and one day imprisonment (reclusion temporal) at hard labor, together with the costs and other accessories mentioned in the judgment.

From the evidence adduced at the trial it was disclosed that at
half-past 6 o’clock on the morning of the said 6th day of July, while
the defendant,’ Jose R. Padilla, was doing sentry duty as an enlisted
man of the Constabulary and singing in front of the barracks and jail
on the Island of Isabela de Basilan, he passed near the deceased,
Emiliano de los Santos, who told him that he had no voice for singing;
to this Padilla replied that as he was doing sentry duty he would
permit no jesting, as he was not allowed to talk, and thereupon
continued walking his post; but on passing Santos again, the latter
repeated the jest and the defendant warned him that, if he did not keep
still he would strike him with the butt of his rifle. On hearing this,
the deceased, still in a spirit of fun, grasped Padilla around the
throat with both hands, but the defendant was able to free himself at
once and fired a shot at Santos, which entering the right cheek, passed
out close to the left ear.

There is no doubt that the crime of homicide, as denned in article
404 of the Penal Code, was committed, it having been proved that
Emiliano de los Santos lost his life by violence as the result of a
gunshot wound, without there having been attendant in the commission of
the crime any of the qualifying circumstances enumerated in article 403
of the Penal Code.

The defendant did not plead guilty and yet he was proved the sole,
direct, and confessed author of the crime of which he was convicted, he
having fired upon the deceased Emiliano de los Santos, and caused his
instant death as the result of a mortal wound inflicted by the rifle
ball which entered his right cheek and passed out near his left ear,
said wound having been inflicted by Padilla because Santos had made
game of him and seized him by the throat in a spirit of fun.

In the commission of the crime only the two attendant extenuating
circumstances 4 and 7 of article 9 of the Penal Code can be considered,
there being no aggravating circumstance to offset their effect, as it
was established in the trial that the deceased provoked the occurrence
by his persistent jesting, to which the defendant objected from the
beginning; the defendant having at last been driven to act in a sudden
and blind burst of passion, when grasped by the throat by the deceased,
even though the latter did so in a spirit of fun, though without
consideration of the fact that the defendant was then on sentry duty.
These two circumstances in the case are held to be of a qualifying
character, with the result that the proper penalty ought to be the one
immediately below that fixed by law in the corresponding degree,
according to the number and importance of said circumstances under the
provisions of article 81, paragraph 5, of the Penal Code.

The acquittal of the defendant by virtue of the exempting
circumstance of self-defense is not right, there having been no
previous illegal aggression, the first and principal element of that
circumstance, without which essential requisite paragraph 4 of article
8 of the Penal Code can not be applied.

The fact that the deceased seized the defendant around the throat
and exerted pressure thereon in one of his frolics which he had
persistently kept up with notorious imprudence, and in spite of the
opposition of the defendant, can not be considered as an illegal
aggression in the case of two companions in arms quartered in the same
barracks.

It is true that the defendant had warned the deceased that he would
strike him with the but of his rifle if the latter persisted in making
game of him and that the deceased kept on doing so, but nevertheless
this, and the fact that the defendant was on sentry duty, did not
justify him in shooting and killing the imprudent joker; nor can the
shot be called accidental, as it was established in the trial that the
sentry is not in the habit of carrying his rifle loaded, and it is to
be presumed that the defendant intended to punish the man who had been
plaguing him, by killing him unlawfully and that to do so he was
obliged to load his gun.

He might have complained to his superior officer instead of
committing a crime which, under the circumstances in which he committed
it, deserves at least mitigated punishment, as he has no right to
deprive a fellow-being of life, except in those cases of absolute
necessity expressly exempted by the penal law.

In view of the above considerations, it is right in our opinion that
the sentence appealed from be reversed and the defendant, Jose R.
Padilla, be sentenced to six years and one day imprisonment (prision mayor),
the accessory penalties provided by article 61 of the Penal Code, the
payment of an indemnity of 1,000 pesos to the heirs of the deceased,
without subsidiary imprisonment considering the nature of the penalty,
and to the costs in both instances. Let the case be remanded to the
trial court together with a certified copy of this judgment and of the
sentence which shall be entered for execution. So ordered.

Arellano, C. J., Mapa, and Johnson, JJ., concur.

Carson, J., dissents.