G.R. No. 12936. January 10, 1918
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. MARIANO BATUNGBACAL, DEFENDANT AND APPELLANT.
AVANCEÑA, J.:
past eight years had 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 from
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 stream 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 or 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. Anyone 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 paragraphs 5 and 6 just quoted
refer, provides:
“4. Anyone who acts in defense of his person or rights, 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, ahd 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 only 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 resentment, 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, Carson, Araullo, Street, and
Malcolm, JJ., concur.