THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. AMBROSIO GUTIERREZ, DEFENDANT AND APPELLANT.

This appeal is taken from a judgment of the Court of First Instance
of Manila, finding the accused guilty of homicide, and sentencing him
to fifteen (15) years of reclusion temporal, the accessory penalties,
to indemnify the heirs of the deceased in the sum of P1,000, and to pay
the costs.

The appeal is based upon the following three assignments of error:
(1) In considering only the testimony of the two interested witnesses
for the prosecution, Rivero and Pantangco; (2) in not sustaining the
plea of self-defense of the accused; and (3) in finding the accused
guilty of the crime of homicide.

The accused does not deny having killed the deceased Emilio Paat. It
is therefore incumbent upon him, for his acquittal, to show
satisfactorily that he committed the act with complete justification.

He alleges self-defense; but upon a careful study of the evidence
both for the prosecution and the defense, and considering it as a
whole, it cannot be held that the accused’s plea of complete
self-defense has been sufficiently proven.

The plea of self-defense is an affirmative allegation which must be
established by the accused with sufficient and convincing evidence (U.
S. vs. Coronel, 30 Phil., 112; and People vs. Baguio, 43 Phil., 683).

The only thing disclosed by the evidence resulting from our
examination thereof, is that the accused actually tried to defend his
brother-in-law Alberto Martin, who was attacked by the deceased, which
clearly shows that there was no sufficient provocation on the part of
the accused. Although we also believe, as was proven, that the accused
was unlawfully attacked, nevertheless, the aggressor was not the
deceased but another person named Joven. Consequently, this unlawful
aggression cannot be considered in this case as an element of
self-defense; because, in order to constitute an element of
self-defense, the unlawful aggression to which the law refers must
come, directly or indirectly, from the person who was subsequently
attacked by the accused. It has been so held by the Supreme Court of
Spain in its decision of May 6, 1907; nor can such element of unlawful
aggression be considered present when the author thereof is unknown, as
was held in the decision of February 27, 1895, of said Supreme Court.

Only one of the three elements of self-defense can therefore be
considered in the present case, that is, the lack of provocation on the
part of the accused, which we shall consider as a mitigating
circumstance (article 9, No. 1, Penal Code), not compensated by any
aggravating circumstance, for we find none in the record. Article 86 of
the said Code is not applicable to this case because most of the
elements of complete exemption provided in said Code are not present.
Wherefore, the minimum penalty for homicide must be imposed.

By virtue of the foregoing, and with the modification of the
judgment appealed from as to the principal penalty, the accused is
hereby sentenced to twelve years and one day of reclusion temporal,
said judgment being affirmed in all other respects, with costs of both
instances against the appellant. So ordered.

Avanceña, C. J., Johnson, Street, Villamor, Johns, and Villa-Real, JJ., concur.