SAMSON VILORIA CALDERON, PETITIONER, VS. PEOPLE OF THE PHILIPPINES AND THE HONORABLE COURT OF APPEALS, RESPONDENTS.

Accused of homicide, defendant Samson Viloria Calderon was, after
due trial, convicted, by the Court of First Instance of Manila, of
homicide thru reckless negligence and sentenced to an indeterminate
penalty ranging from h months of arresto mayor to 1 year and 6 months of prision correccional,
to indemnify the heirs of Eustacio Rodil, deceased, in the sum of
P3,000.00, with subsidiary imprisonment in case of insolvency, and to
pay the costs. On appeal taken by said defendant, the Court of Appeals
found him guilty of homicide and imposed upon him an indeterminate
penalty of not less than 6 years and 1 day of prision mayor nor more than 14 years, 8 months and 1 day of reclusion temporal
and, in all other respects, affirmed the decision of the court of first
instance, with costs against the defendant. The latter has brought the
case; to us for review by writ of certiorari.

The pertinent facts are set f forth in the decision of the Court of Appeals, from which we quote:

“En la noche del dia primero de abril de 1951, el leniente del
ejercito, Leopoldo Regis, al mando de un peloton de soldados, desplego
doce de los mismos, entre ellos Samson Vlloria Calderon, en el lado
izquierdo del area Tejeron-Harran, Santa Ana, Manila, que se puso bajo
cordon, por sospecharse que dentro de ella estaban tres jefes de los
Huks. Samson formaba la linea del cordon paralela al carco de ‘square
type wire fence1 (t.n.t. p. 3) del solar de unos dos mil metros
cuadrados de la casa No. 227 de la calle Tejeron, Santa Ana, donde
vivian Eustaeio Rodil, su esposa y sus hijos. El carco de alambre
estada reforzado con plantas de gumameia de treclio entrecho. En el
solar habia alguno que otro grupo de platanos y una zahurda detras de
la casa. Entre 11:00 y 12:00 de esa nocha, Benjamin Rodil, uno de los
hijos de Eustacio, se desperto por los ladridos de los perros y el
riiido que luego observo producia el paso de un hobra. Abril la ventana
y se puso a observar, jy al ooavencerse que habia una persona fuera del
cerco, desperto a Sus hermanas, Elisea y Virginia, y a su sobrino,
Bernardo, informoles que alguien estaba fuera del eerjcd y ordeno a
Elisea que abriera las dos bom- billas electrlcas de a cien bujias cada
una, puestas detras de la casa para alumbrar la zahurda, pues que dos
como habo tentativa de hurto de sus cerdos en anteriores ocasiones,
creia que otro se inter taba llevar a cabo. Encendidas las luces,
Benjamin y su sobrino Bernardo bajaron al solar, recogieron piedras y
tiraronlas hacla el lugar doide se oian los pasos, haciendo al mismo
tiempo ruido para ahuyentar. Asi estuvleron por unos quince minutos en
que, a veces, no oian los pasos del lndividuo que estaba fuera del
cerco, hasta que Eustacio Rodil bajo y pregunto que era lo que habia.
Le contestgron que se oian pasos fuera del cerco, y Eustacio se dirigio
hacia alii, llevando en la mano derecha un bolo que llaman army bolo,
que solia usar para cortar la hierba del solar. Apenas se habia
alejado unos quince pies de Benjamin, se oyo un tiro y Eustacio volvio
diciendo que le habian tocado palpando al efecto la parte anterior de
su hombrq izquierdo, de la que manaba sangre. Se desmaycantes de llegar
a su casa y le tuvieron que alzar y colocarle en su cama. Mientras le
quitaban la ropa para descubrir sus heridas. llegaron dos soldados del
ejercito, Samson viloria y Ernest Lemos, y despues el tenlente Leopoldo
Regis, qua sugirio el traslado de Eustacio al Hospital General,
sugestion a la que ss conformo el Dr. Deogracias Rodil, uno de los
hijos de Eustacio qua avisado del suceso llego poco antes que Regis,
porque no tenia a mano medios para contenar la hemorragia que manaba de
las heridas de su padre. Embarcaron a ijustacio en un jeepney, y el Dr.
Deogracias y los dos soldados le llevaron al Hospital General. Segun el
Dr. Deogracias, el pregunto por el que disparo a su padre y ninguno de
los dos soldados le eontesto, pero, segun Samson, el le contesto que
habia sido el. En el Hospital Eustacio fallecio al dia siguiente, 2 de
abril, y el resiltado de la autopsia de su cadaver, practicada por el
Dr. Mariano B. Lara, Chief Medical Examiner, MPD, consta en el Exh. B,
* * *

* * * *

Segun Benjamin, no oyo mas que el eatampido de un tiro, y de acuerdo
con el soldado Lemos, que estaba a tres metros de distancia de Viloria,
no vio a este disparar sino una sola vez. El cadaver de Eustacio, sin
embargo, presentaba tres heridas de entrada, en la parte anterior del
hombroi izquierdo, y una de salida en la espalda, en la region
escapular izquierda, heridas que tales comiestan marcadas en los
disenos del Exh. B-1, la Uniea de salida aparece mas baja que las de
entrada.

Viloria admite que fue el quien disparo el tiro, que hirio y mato a
Eustacio en la occasion de iutos, y explicando el suceso, dijo:

 

A	I believe that time that he was a Huk to kill me, so I shot him.
Q	What made you believe that he was a Huk?
A	Because there was information to the effect that there were many huks in this area.

* * * *

Q	Do you know the place where the civilian came from?
A	I know sir.
Q	From where?
A	From my front. He came from the direction opposite the place where I was at that time. (t.s.n. p. 35).
Q	Was there any conversation between you and the civilian before you shot him?
A	The civilian and I had a conversation.
Q	What was that conversation about?
A	I told him three times to halt and he said, if we did not clear out of the area he would kill us.
Q	Who would kill you?
A	The man.
Q	When you said to the civilian to halt did you identify yourself?
A	Yes, sir.

* * * *

Q	In what way did you identify yourself?
A	I told him I am a soldier.
Q	What did the man say if there is any?
A	I identified myself to him that I was a soldier, and that I told him not to move, but he said, that if we did not clear out the area he would kill, and he swung his bolo to me and I retreated.
Q	What more did he do?
A	He nevertheless continued advancing forward and he made movement as if to put one of his legs over the fence, (t.s.n, p 36)
Q	At the time that the civilian was going toward you, could you see him?
A	I could see him only when he was two meters distance from me.
Q	In that distance of two meters that was you could see him already, do you re- member if that civilian carried with him something?
A	He has. He had an army bolo in his hand.
Q	In what hand was he carrying the bolo?
A	On the right hand.
Q	When he was at a distance of two meters, that was when he was going toward you, what did he do?
A	He was about to hack me with his bolo.
Q	Did he hack you?
A	Yes, sir.
Q	How many times did he hack you? What did he do?
A	Three times.
Q	At the time when the civilian was hacking you, could you demonstrate the position of the body and the weapon in his hand?
A	(Witness demonstrate by placing the witness chair in front of him and letting it be supposed as the fence in front of the witness and bends forward over the top of the fence so that the upper part of his body is bent and over the top of the fence with his right hand raised as if to strike, the left leg being placed on the witness chair, supposed to be the fence.)
Q	What was the distance of the civilian when he was hacking you?
A	One meter.
Q	After hacking you three; times, what did you do?
A	I shot him.
Q	Would you demonstrate before this Hon. Court your position at the time when you shot the civilian?
A	(Witness demonstrated in a squatting position with his left foot forward, his left elbow on his left knee and with left hand a little bit raised and his right hand drawn back as if holding the trigger part of a rifle.)
Q	At the time when you were about to shoot him, what did you feel in your person?

* * * *

A	I thought he was trying to kill me.
Q	What made you believe that he was trying to kill you?
A	I thought he was a Huk.
Q	After having shot the civilian, what did you do?
A	I told my companion, Ernesto, to report the matter to Lt. Regis,” (t.s.A. p 37)

Appellant maintains that:

“I. The Court of Appeals erred in holding that late
Eustacio Rodil did not commit acts of unlawful aggression against the
petitioner-appellant;

II. The Court of Appeals erred in not
holding that petitioner-appellant fired the shot under the impulse of
an uncontrollable fear of an equal or greater injury;

III.
The Court of Appeals erred in holding that the shot fired by the
petitioner-appellant did not proceeding from an innocent mistake of
fact;

IV. The Court of Appeals erred in holding that the ruling held by this Honorable Court in People vs. Oanis et al. (7k-Phil. 259), is applicable in the instant case.

In support of the first, second arid third assignments error, it is
urged that Eustacio Rodil gave appellant three bolo slashes, which
missed him; that he believed a Huk; and that appellant fired at Rodil
in self-defense and acting under the impulse of an uncontrollable fear
of an equal or greater injury. In this connection the Court of Appeals
said:

“Eustacio venia de su casa, se dirigia al cerco ds su solar, tendido
fuera del cordon, y no estaba por lo tanto, dentro del area sospechosa,
accorralada en esa ocasion por la fuerza armada a que pertfeneeia
Viloria. El solar detras de la casa de Eustacio, a cuyo cerco este se
flirigia, estaba alumbrado por dos bombillas electricas de a cien
bujias eada una. Mas aun, antes de que Eustacio bajara de su casa y
fuera al cerco, al otro lado del cual se encontraban Viloria, a este
estuvieron Benjamin y Bernardo tirandole piedras y ahuyentandole con la
voz, Sodas estas eircunstancias no daban ugar a suponer que habia Huks
en el solar de la casa de Eustacio, porque ningun Huk atacaria
eneendiendo prijneramente las luces electricas, para exponerse asimismo
a los que estaban en la sombra, y menos aun tiraria piedras y
huyentaria haciendo ruido con la voz. No se concibe, pues, como
Viloria, que debe estar entrenado contra las emboscadas de los Huks.
podia creer oue Eustacio era un disidente; sobre todo porque,
segun el mismo, fue advertido que despejara aquel sitio o de ojfcro
modo seria muerto. Esta advertencia no puede proceder de un Huk, y es
toda la advertencia de un hombre que vive dentro de la ley, y dentro de
la ley quiere proteger sus intereses. Pero esta conversacion, que segun
Viloria tuvo con Eustacio, no fue oida por Benjamin, ni la confirma
Lemos, quien ni siquiera corrobora a Viloria en su afirmacion de que
fue atacado tres veces por Eustacio con un army bolo, y eso que, segun
Lemos, el le vio a Viloria en el acto de disparar a Eustacio, lo que
indica que el estaba tambien en condicipnes de haber podido ver si
Eustacio hubiera atacado a Viloria. Por el hecho de que entre Viloria y
Eustacio habia de por medio el cerco desquare type wire fence, no era
de creer que aunqne este pudiera saltarlo,causa dificil a su edad de 68
anos y su avitaminasis que, segun el Dr. Deogracias, lo impedia mover
libremente las extremidades inferiores, lo intentaria, sabiendo que con
ello se exponia a un ataque, sin defensa de su parte. Ademas, estando
Viloria fuera del 34 cerco, Eustacio no era sino un espantajo dentro
del cerco, que si levantaba su bolo, lo haeia para espantar, sin
colocar de ninguna manera a aquel en sitijiacion peligrosa. Y debe ser
asi, porque de acuerdo con las heridas que el Dr. Lara localize en q!
cadaver de Eustacio, la unica de salida en la espalda, en la region
clavicular, aparece mas baji que las de entrada, en la cara anterior
del hombro izquierdo, y su dlreccion, como se van en laigura B-1, es de
un angulo de unos 60 grados, lo que denota que el acusado etaando
dispare su armi estaba a un nivel mas alto que Eustacio, y no como
trato de demostrarlo, agacbandose eon la pierna izquierda hacia delante
y apoyando su codo izqikierdo en su rodilla izquierda.

No siendo exculpatoria la explieacion dada por Villoria, y admitido
por el que fue quien disparo el tiro que hirio y mato a Eustacio, el
debe responder por esta agresion criminal, sin que pueda a su favor
invocar que en esa noche estaba en su puesto de soldado, por exigencias
del deber y el servicio, publico, porque estos, en un gobierno derden y
de ley, no immunizan al abuso, el exceso y el crimen. El resultado de
sus actos, ni siquiera puede considerarse justificado por una falsa o
erronea identificacion de su victima, porque esta se hallaba dentro de
su solar, fuera del cordon, caminaba a la luz electrica de doscientas
bujias, le advertia, segun el, que despejara el sitio, todo lo cual
revela claramente que no era disidente, ni queria danarle, y el no estaba de ningun modo en peligro para optar por una determinacion extrema,
porque se interponia entre el de alambre, que este no trato agredirle,
maliciosa y 7 Eustacio el cerco lie saltarlo para resueltamente.

It is apparent from the foregoing that the Court of Appeals found
the theory of the defense unworthy of credence. Not being subject to
our review, this finding is conclusive in the determination of the
assignments of error under consideration, which thus turn out to be
based upon false predicates and are, accordingly, untenable. At any
rate, if, when the fatal shot was fired by appellant, as testified to
by him, Rodil had just raised his left foot and placed it or was about
to raise his left foot and place it on the lower portion of the wire
fence, which was slightly over one yard in height, for the purpose of
climbing it, he could not have given,at the same time, a bolo slash,
for appellant was on the other side of the fence, squatting
about a yard away therefrom, and hence, beyond his reach. Besides,
Rodil – who was weak, for, apart from: being over 68 years of age, he
had avitaminosis, which impaired the freedom of movement of his legs
could not have gone over the fence without holding it with both hands
and would have lost his balance had he swang his bolo while he was in
the position described by appellant. Even ore unbelievable is the
latter’s testimony to the effect that, when Rodil was still about a
yard from the fence, and, hence, two (2) yards away from appellant, the
former had already tried to hack him twice with his (Rodil’s) bolo,
which, in view of the distance and the fence separating them, had no
possibility of landing on appellant. It is, likewise, interesting to
note that, according to the evidence for the defense, appellant was, at
the time of the occurrence, squatting upon a ditch, whereas Rodil was, not only standing, but, also, trying to climb the fence, and, consequently, at a higher level than appellant. Yet, the former’s injury had a downward
direction, although it would have gone upward, if appellant’s testimony
were true. It is thus apparent, from the record, that appellant was
neither candid nor truthful in the narration of facts; that the Court
of Appeals was fully justified in giving no credence to his testimony
and in accepting the version of the prosecution; and that the first
three assignments of error cannot be sustained.

It is contended, under the last assignment of error, that, having
acted under a mistake of fact, appellant is exempt from criminal
liability and that, at most, he is merely guilty of homicide thru
negligence. In support of this pretence, it is urged that, in deciding
the case, we should consider the condition of emotional stress under
which appellant must have been when he fired the fatal shot, not the
objective facts, as the same appeared after the event, and that, being
a peace officer, he was entitled to act in conformity with his honest
belief at the time of the occurrence. Although generally material, the
belief and intent of the accused are not necessarily decisive in the
disposition of the case. The judgment and discretion of public
officers, in the performance of their duties, must be exercised neither
capriciously nor oppressively, but within reasonable limits. In the
absence of a clear legal provision to the contrary, they must act in
conformity with the dictates of a sound discretion, and with the spirit
and purpose of the law. This is specially true in the case of members
of the armed forces, whose main duty is to defend the state, and,
consequently, the people who, in a democratic society like ours, are
the repository of sovereignty. Such duty would be a myth if a law
abiding tax payer could be slain in his own home with impunity.

The army bolo held by Rodil at the time of the occurrence does not
suffice to justify his killing for, does the fundamental law not
guarantee the inviolability of his domicile? Was it not, accordingly,
the legal obligation of; appellant to respect and even protect the
same? Was Rodil not entitled, therefore, to defend it as his own
“castle” or citadel? Any other view would create the impression that
peace officers are public masters, not public servants,
thus alienating the faith and confidence of the people in the
government, and undermining the foundation of all democratic
institutions.

Furthermore, the Court of Appeals did not believe that appellant had
acted under a mistake of fact. Indeed, he had no reason to assume, or
even suspect, that Rodil was a Huk, the latter being inside his property, which was fenced, as well as outside
the area then guarded by the army. Moreover, shortly before the
shooting, members of the Rodil family had switched on two 100-watt
electric bulbs, which illuminated their lot brightly. Then, they went to the yard and started throwing stones
in the direction of the place where appellant and other soldiers were
posted, believing them to be marauders with evil designs. In addition,
the former made some noise in order to scare the latter away. This lasted for about 15 minutes,
after which Eustacio Rodil appeared in the scene, holding an army bolo
in his right hand, and proceeded to the spot where the supposed
marauders were posted, at the same time bidding them to go away. As
Rodil approached or reached the fence aforementioned, he was fatally
shot by: appellant. Obviously, no individual, who is a Huk, bent on
killing the appellant, would have lighted the place with said electric
bulbs. Much less would said Huk have performed or caused to be
performed the acts above referred to the effect of which upon
appellant and his companions was to warn; them in advance before
attacking him. In other words, appellant had absolutely no
justification whatsoever to believe and could not have believed
either that Rodil was a Huk or that he intended to kill said appellant.

In the light of these facts, and considering that Rodil was shot
with the intent of killing him, it is clear that appellant does not
deserve an acquittal. The cases of People vs. Lara (48 Phil. 153) U. S.
vs. Mojica (42 Phil. 784), U. S. vs. Ah Chong (15 Phil. 239) and People
vs. Bayatnbao (52 Phil. 3111), cited by the defense, are not in point.
In the first two cases, there was actually an unlawful aggression on the part of the deceased. In the last two cases, the defendant had reasonable grounds – which herein appellant did not
have to believe that their lives were in imminent danger. We have,
likewise, considered the applicability of the rule laid down in the
base of People vs. Mamasalaya, (50 O.G.1004), involving, among others,
an officer of the Philippine Constabulary, one Lt. Cabelin, in command
of several members of said force, who, in compliance with his
instructions, had fired at some houses in the barrio of Sapalan,
Cotabato, Cotabato, thereby killing several innocent persons. In;
acquitting him, this Court said:

“* * * There is no charge or claim that he acted deliberately and
criminally in killing the four innocent civilians knowing that they
were innocent. In good faith he believed that the three houses
pointed out to him by Bulalakao were being occupied by bandits and
lawless elements whom he was ordered to disperse. Capture or destroy.
The question is whether he incurred in negligence or reckless
imprudence in ordering his men to fire upon the houses. As previously
stated, the witnesses for the defense including lit. Cabelin told the
court under oath that the patrol was first fired upon from the three
houses but in spite of this unprovoked fire he and his sergeant shouted
and called out to the inmates of the houses not to fire because they
(members of the patrol) were P.C. soldiers; and it was only when the
firing: persisted that he ordered his men to return the fire. Of
course, the prosecution denies this claim. But even assuming as claimed
by the prosecution that the patrol had not been first fired upon, and
that Cabelin and his sergeant had; not shouted or called out to the
inmates of the houses to identify himself and his men, tinder the
circumstances, we believe that the shooting was .justified for having been done and effected under an honest mistake.” (Italics supplied)

We do not believe that appellant herein is substantially in the same
predicament as Lt. Cabelin for: (1) the former had not been told by
anybody that Eustacio Rodil was a Huk or an outlaw, unlike Cabelin who
had been advised that the inhabitants of the houses in question were
bandits and/or lawless elements, and was requested to proceed against
them as such; (2) Cabelin was in Gotabato, in a region known to be infested by said elements, whereas Rodil was in Manila, outside the area cordoned by the peace officer; (3) the Mamasalaya case involved an appeal directly from a decision of the court of first instance, whose findings of fact are not binding upon the Supreme Court, which accepted and believed
the version of Cabelin, or most of it, whereas the case at bar is
before us upon a petition for review, by writ of certiorari, of a
decision of the Court of Appeals, which found the theory of the defense to be unworthy of credence and this finding is conclusive upon us;
and (4) a majority of the members of this Court with one member
writing a strong dissenting opinion and 3 members not taking part in
the decision found that Cabelin had acted under the “honest mistake”
that the deceased were dissidents and/or outlaws, and that he was
“justified” in ordering the shooting, unlike the case at bar in which
the court of first instance, the Court of Appeals and the majority of
this Court agree that appellant had no reason to “mistake” Rodil for a Huk and that the former was not justified, therefore, in shooting him.

Is appellant herein guilty of homicide or, merely, of homicide
through either simple or reckless negligence? We have given
considerable thought to this question and devoted a good deal of our
time in the study of the authorities pertinent thereto, and the
conclusion reached by the majority off the members of this Court is in
favor of the first alternative, for the following reasons, namely

1. In People vs. Guillen (47 O. G. 3433, 3440) it was held
   that “a deliberate intent to do an unlawful act is essentially
   inconsistent with the idea of reckless imprudence. (People vs. Nanquil,
   43 Phil. 232). Where such an unlawful act is willfully done, a mistake
   in the identity of the intended victim cannot be considered as reckless
   imprudence. (People vs. Gona, 54 Phil. 605).” In People vs. Castillo
   (42 O. G. 1914, 1921), this Court declared that there can be no
   frustrated homicide through reckless negligence, for reckless
   negligence implies lack of intent I to kill, without which the crime of
   frustrated homicide can not exist. In the case of People vs.
   Dumon (72 Phil, 41, 49), the court convicted of double homicide a
   person who killed a couple, allegedly in the act of copulation, in the
   erroneous belief that the woman was his wife committing adultery, the
   theory that the offense had been committed thru reckless negligence,
   having been rejected, for the reasons among others, that “the act of
   firing the fatal shots was intentional” on the part of the accused.
   Similarly a peace officer, who killed a person asleep, in the mistaken
   belief that he was a notorious criminal and escaped convict, whom the
   authorities wanted dead or alive, was found guilty of murder in People vs. Oanis (74 Phil. 256). In disposing of the case, this Court said:

   “The
   crime committed by appellants is not merely criminal negligence, the
   killing being intentional and not accidental. In criminal negligence,
   the injury caused to another should be unintentional, it being simply
   the incident of another act performed without malice. (People vs. Sara,
   55 Phil. 939). In the words of Viada, ‘para que se calif pique un hecho
   de imprudenciSt es preciso que no haya mediado en el malicia ni intene
   alguna de dafiar; existiendo esa intencion, deberd calificarse el hecho
   del delito que ha produeido, por ma’s que no haya sido la ijitencidn
   del agente el causar un mal de tanti gravedad csomo el que se
   pirodujo.’ (Tomo 7, Viada Cddigo Penal Comentado1, 5. a ed. pag. 7).
   And, as once held by this Court, a deliberate intent to do an unlawful
   act is essentially inconsistent with the idea of reckless imprudence
   (People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16),
   and where such unlawful act is willfully done, a mistake in the
   identity of the intended victim cannot be considered as reckless
   imprudence (People vs. Gona, 54 Phil., 605) to support a plea of
   mitigated liability.”

2. The case
   of People vs. Fernando (49 Phil., 75), in which the defendant, was
   convicted of homicide through reckless negligence, is substantially
   different from the case at bar. It was satisfactorily established in
   said case that the defendant therein was informed that the victim was
   an out-law, wanted by the authorities, and the surrounding
   circumstances were such that said defendant had some reason to believe
   the information to be true. In the, Fernando case, the language used
   was:

   “The status of the accused on the night in
   question was that of an agent of the law, to whom notice had been given
   of the presence of suspicious looking persons who might be the Moro
   prisoners who had escaped from the Penal Colony of San Ramon. The
   appearance of a man, unknown to him, dressed in clothes similar in
   color to the prisoners’ uniform, who was calling the owner of the
   house, and the silence of Paciencia Delgado, who did not at the time
   recognize the man, undoubtedly caused the accused to suspect that the
   unknown man was one of the three persons that the owner of the house
   said were prowling ground the place. The suspicion became a reality in
   his mind when he saw that the man continued ascending the stairs with a
   bolo in his hand, not heeding his question as to who he was. In the
   midst of these circumstances and believing undoubtedly that he was a
   wrongdoer he tried to perform his duty and first fired into the air
   and then at the alleged intruder. But it happened that what to him
   appeared to be a wrongdoer was the nephew of the owner of the house who
   was carrying three bolos tied together. At that psychological moment;
   when the forces of fear and the sense of duty were at odds, the accused
   was not able to take full account of the true situation and the bundle
   of bolos seemed to him to be only one bolo in the hands of a suspicious
   character who intended to enter the house. There is, however, a
   circumstance that should have made him suspect that the man was not
   only a friend but also a relative of the owner of the house from the
   fact that he called ‘Nong Miong,’ which indicated that the owner of the
   house might be an older relative of the one calling, or an intimate
   friend; and in not asking Paciencia Delgado who it was that was calling
   her father with such familiarity, he did not use the ordinary
   precaution that he should have used before taking such fatal action.

   “Taking
   into consideration the state of mind of the accused at the time, and
   the meaning that he gave to the attitude of the unknown persons, in
   shooting the latter he felt that he was performing his duty by
   defending the owners of the house against an unexpected attack, and
   such act cannot constitute the crime of murder, but only that of simple
   homicide. He cannot be held guilty, however, as principal, with
   malicious intent, because he thought at the time that he was justified
   in acting as he did, and he is guilty only because he failed to
   exercise the ordinary diligence which, under the circumstances, he
   should have by investigating whether or not the unknown man was really
   what he thought him to be. In firing the shot, without first exercising
   Seasonable diligence, he acted with reckless negligence.

   “The crime committed by the accused, therefore, Is homicide through reckless negligence * * *.” (pp. 78-79)

Upon the other hand, appellant herein had never been informed that
Rodil was a Huk. As already adverted to the conditions obtaining pt the
time of the occurrence were such as to leave no room for doubt that
Rodil could not be Huk and did not intend to kill the herein appellant.
Incidentally, the Fernando case is clear Authority against appellant’s
bid for acquittal,

3. Appellant herein has much in common with the
   defendant in People vs. Oanis (74 Phil., 257). The latter was it1 peace
   officer who had been ordered to apprehend, “dead or alive” a notorious
   gangster and escaped convict known as Balagtas. Having been informed
   that the latter was living with a taxi dance girl, named Irene, the
   accused proceeded to the house in which she lived. As he opened the
   door of her room, defendant saw a man in her bed, whereupon he
   (defendant) shot and killed him. Although, acting under the erroneous
   belief that the victim was Balagtas, this Court convicted the accused,
   not merely of homicide, but of murder. Obviously, the main reason
   behind this conclusion was the fact that the accused had acted with
   such a disregard for the life of the victim without checking
   carefully the latter’s identity as its place himself on the same
   legal plane as one who kills another willfully, unlawfully and
   feloniously. In shooting Rodil who, obviously, could neither be a Huk
   nor a killer appellant herein has acted under similar conditions.

4. The view of the Supreme Court of Spain in its decision of April 26, I883, is substantially the same.

In connection therewith, we quote from Viada:

“Si morador de un cortijo que oyendo ladrar los
perros, y temeroso de que alguien se acercase a sustraer las
caballerias, se asoma al balcon, dando el ‘quien vive, y como madie
contestase, dispara la escopeta sobre un bulto, apareciendo al dia
siguiente en dicho sitio el cadaver de un sujeto, Intimo amigo de
aquel, cuya familia no supo expliearse el motivo que le condujera al
lugar dondo fue’ encontrado muerto, sera responsable del deTLito de
homicidio. o simplemente del de imprudencia temeraria? – El Tribunal
Supremo ha declarado oue la primera y mas grave calificaciSn
es la procedente: ‘Considerando que en la sentencia recurrida se
declara como hecho probado que Pedro Molina, despues de preguntar
repetidamente aquilnvive?1 y como nadie le contestase, disparo su
escopeta sobre un bulto que distinguio a distancia de seis varas, lo
cual demuestra que ejecuto’ este hecho voluntaria e intencionalmente
sobre una persona, porque de una persona debiS creer que era el
expresado bulto, cuando le pregunto ‘quiln vive?’, y por lo tanto, que
cometiol el delito de homicldifi por que ha sido penados Considerando
que para que se entienda que un hecho se ha cometido por imprudencia
emeraria y pueda tener aplicaci6n el parrafo primero del art. 581 del
Codigo penal, es requisite indispensable que en la ejecucion no haya
mediado malicia, lo cual no ocurre en el caso del recurso porque con
malicia, y voluntad obrd Pedro Molina disparando un arma de fuego sobre
el bulto de una persona a la que causo la muerte, etc.” (S. de 26 de
abrll de 1883, Gaceta de 5 de septiembre.) (Viada, Vol. 7 5th ed., p.
23.)

In view of the foregoing, we are of the opinion and so hold that the
decision of the Court of Appeals should be as it is hereby affirmed.
However, in view of the appellant’s youth and considering that he had
joined the Philippine Army a few months only, prior to the occurrence,
the Clerk of Court is hereby directed to forward a copy of this
decision to the President of the Philippines, through the Secretary of
Justice, for consideration of the propriety of extending to appellant
herein the benefits of executive clemency, after service of such period
of the sentence imposed as maybe deemed sufficient to satisfy the
demands of justice and public interest. With costs against the
appellant.

IT IS SO ORDERED.

Pablo, Bangzon, Padilla, Montemayor, Reyes, A., Jugo, and Bautista Angelo, JJ. concur

Paras, C.J., in the result.

Mr. Justice J.B.L. Reyes, took no part.

---

DISSENTING

MONTEMAYOR, J.:

Appellant SAMSON VILORIA CALDERON, hereafter referred to as VILORIA,
a member of the Armed Forces of the Philippines, was convicted by the
Court of First Instance of Manila, of homicide thru reckless negligence
and sentenced to an Indeterminate penalty ranging from four (4) months
of arresto mayor to One (1) year and six (6) months of prision correccional,
to Indemnify the heirs of Eustacio Rodll In the amount of P3,000, with
subsidiary Imprisonment in ease of insolvency, and to pay the costs. On
appeal to the Court of Appeals, said Tribunal found him guilty of
homicide and sentenced him to an indeterminate penalty of not less than
six (6) years and one (1) day of prision mayor nor more than
fourteen (14) years, eight (8) months and one (1) day of reclusion
temporal with the same Indemnity of P3,000 imposed by the trial court.
The case is now with us on appeal.

In affirming the decision of the Court of Appeals the majority
opinion accepts and makes Its own the findings and conclusions made by
the Court of Appeals, and in fact quotes with approval said findings
and conclusions, saying that the same are not subject to review by the
Supreme Court and are conclusive in the determination of the case. In
this dissent venture to assert and to hold that while the findings of
fact by the Court of Appeals in this case, as in other cases appealed
to it, are conclusive and while I accept said findings of fact, the
conclusions arrived at by the Court of Appeals on the basis top Huk
Commanders, among them NICK PAMINTUAN, could be found in that area. The
Army therefore decided to conduct as it did conduct on April 1, 1951, a
raid through its Military Intelligence Service (MIS). To support this
raid and to prevent the escape of the dissidents sought to be
apprehended, a platoon of 36 soldiers under the command of Lt. Leopoldo
Regis was dispatched to the area. He deployed his men in three squads
of 12 men each, and Viloria was assigned to the left flank of the
cordon. This line of 12 men was parallel to the square-type wire fence
which surrounded the yard or lot of the deceased Eustacio Rodil, and
where his house stood. At about 11:30 that night appellant Viloria took
his position nest to and outside the fence of Eustacio, squatting in a
depression or canal. It seems that the movements and steps of the
soldiers were noticed by a son of Eustacio named Benjamin who later
woke the inmates of the house up and turned on the lights behind the
house. A word about said lights.

According to the prosecution the house of Eustacio had previously
been the object of three robberies; in the first two, the robbers could
enter the house and were able to carry away some things, but in the
third, the robbers failed to enter the house because of the precautions
taken by Eustacio’s family. To discourage further attempts’ at robbery,
two electric lights each with a 100-watt bulb were installed behind
the house, not only to light up the outside of the house but also that
of the pig pen behind the house where many pigs were kept, Whenever the
inmates of the house felt that there were marauders prowling around,
these two lights were turned on to discourage them.

For fifteen minutes Benjamin was at the window looking out and
observing but he could not see anybody. In order to better observe, he
and a nephew went down and posted themselves behind the house and
because they continued hearing some noise In the direction of the pig
pen although they could not see anyone, they emitted some sounds as if
to challenge or scare away possible prowlers In that area, and they
even threw stones In that direction. Explaining on direct examination
why he could not see those who were making the noise near or outside
the fence, Benjamin testified as follows:

“Fiscal:

Q	During the time that you were making hollering sounds could you see the person malting sounds?
A	No, sir.
Q	Why could you not see?
A	Because In that place of the sounds where it is coming from, it is very dark while in our place, it is very lighted. That is why ye cannot see.” (t.s.n., p. 8)

Not long thereafter, the fatherEustaciocame down the house to make
Inquiries, carrying an Army bole, which he was in the habit of using to
cut grass in the yard, and upon being informed that there seemed to be
people in the direction of the pig pen, he proceeded thereto with his
bolo. After a short time a shot was heard and Eustacio was seen
staggering towards the house fatally wounded in the shoulder and back.
He was taken up the house and examined by the children and then a son
who is a doctor was sent for. Not long thereafter, Lt. Regis, having
been informed of the shooting, went up the house with two soldiers
including Viloria, and at his suggestion and with the conformity of the
son doctor who had already arrived, Eustacio was taken to the hospital
accompanied by Viloria and the other soldier Eustacio later died of his
wound.

No witness for the prosecution testified as to the actual shooting
which was owned and accepted by Vlloria. Only Viloria gave testimony on
this point although a fellow soldier named Limos said that he saw
Vlloria fire at Eustacio. Consequently, any finding as to the manner
Sustacio was shot and the circumstances surrounding the shooting must
be based solely on the testimony of Viloria if found reasonable and
acceptable, or it may be based on mere inferences from the attending
circumstances. Viloria told the court that as he was squatting near and
outside the fence observing and awaiting developments as he was
instructed to do as a member of the raiding party in that trouble area,
presumably to prevent the escape of those sought to be apprehended, he
suddenly saw a figure (Eustacio) brandishing a bolo and advancing
toward the fence in his (Viloria’s) direction ordering whoever was
there to leave otherwise he would kill him.

Viloria said that he explained to the advancing figure that he was a
soldier and three times ordered him to stop; but the man continued
advancing not only brandishing the bolo in front of him in slashing
fashion but when he reached the wire fence he raised his left leg and
bent over forward as if to climb over and even lunged at him (Viloria)
with his bolo, and it was at this moment or instant that Viloria fired
his carbine, assuring the Court that he honestly believed that the man
was a Huk determined to kill and so he shot him in self-defense.
Without much if any explanation the Court of Appeals evidently
discarded and rejected this testimony of Viloria about the warning and
exchange of words between him and Eustacio merely saying that his
fellow soldier Limos failed to corroborate him on this point, nor was
the alleged conversation heard by Benjamin. Then, the Court of Appeals
makes this rather ambiguous and startling statement and conclusion
which to me is unfortunate as it is unfounded.

“No se concibe, pues, como Vlloria, que debe estar
entrenado contra las emboscadas de Ids Huks, podia creer que Eustacio
era un dlsidente; sobre todo porque, segun el mismo, i’ue advertido qua
despejara aquel sitio o de otro inodo seria muerto. Esta advertencla
iid puede proceder de un Huk, y es toda la advertencia de tin hombre
que vIve dentro de la ley, y dentro de la ley quiere proteger sus
Intereses. Pero esta conversaclon, que segun Villoria tuvo eon Eustacio, no fue olda por Benjamin, ni la confirma Lamps, ***.”

How shall we interpret the above statement of the Court of Appeals.
Did the conversation between Eustacio and Viloria take place, namely
that Eustacio warned and ordered anyone in the area to clear out and
leave, otherwise tie (Eustacio) would kill him, and the explanation of
Viloria that he was a soldier and that he ordered Eustacio three times
to halt, take place, or, did It not? Apparently, to the Court of
Appeals, to show that Eustacio was a peaceful citizen within his own
premises who merely asserted his rights, the conversation took place;
but to support Viloria’s claim that he halted him three times and even
Identified himself as a soldier, it did not take place. This ambiguity
is rather disconcerting and was what probably prompted Vilorla’s
counsel to say in his brief:

“It is clear that by this statement, the Court of
Appeals dismisses the idea that the petitioner-appellant could not have
mistaken the deceased as a Huk for the reason that no person not within
the law will ever give the warning so given by Sustacio. But, the Court
of Appeals In continuing stated, ‘Pero esta conversacion, que segun
Viloria tuvo con Eustacio, no fue olda por Benjamin, ni la conflrma
Lemos * * *.’ In effect, for the purpose of showing that no Huk could
be in the yard and that Eustacio should not have been mistaken for a
Huk, the conversation took place; but for purposes of showing that the
deceased did not halt as ordered and that Eustacio was menacing in
attitude and determined to drive or kill the Intruder by the fence, the
conversation was deemed not to have taken place.”

Again, the Court of Appeals makes the following statement and conclusion:

“El solar detras de la casa de Sustacio, a cuyo
cerco este se dlrlgla, estaba aluijbrado por dos bombillas electricas
de a cien bujias eada una. has aun, antes de que Eustacio bajara de su
casa y fuera al cerco, al otrD lado del eual se encDntraban Viloria, a
este estuvieron Benjamin y Bernardo tirandole pledras y ahuyentaiidole
con la voz. Todas estas clrcunstancias no daban lugar a suponer que
habia Huks en el solar de la casa de Eustaclo, porque ningun Huk
atacaria encendiendo primeramente las luces electricas, para exponerse
asimismo a los que astaban eij la sombra, y menos aun tiraria piedras y
ahuyentarla haciendo ruido con la voz.”

And the majority approving the said statement and conclusion adds:

” * * *. Obviously, no individual, who is a Huk,
bent on killing the appellant, would have lighted the place with said
electric bulbs,. Much less would said Huk have performed or caused to
be performed the acts above referred to the effect of which upon
appellant and his companions was to warn them in advance before
attacking him. In other words, appellant had absolutely no
justification whatsoever to believe and could not have believed –
either that Rodil was a Huk or that he intended to kill said appellant.”

They both assume and take for granted that Viloria saw and new that
Eustacio came from t he house; that he was the owner of the same; that
it was he who turned on the lights and that like was the same person
who approached the fence outside of which Viloria was stationed. The
Court of appeals overlooked the fact testified to by the very witness
for the prosecution (Benjamin) and found by itself that the fence was
nailed to and supported by gumamela shrubs and that near or around the
pig pen there was a clump of banana trees and that it was very dark in
that vicinity and so he (Benjamin) could not see what was behind those
gumamela and banana trees. Let me again quote what he said, “Because in
that place of the sounds where it is coming from, it is very dark while in our place, it is much lighted. That is why we cannot see.”
Besides, the yard is quite extensive, containing 2,000 sq. m. according
to the very finding of the Court of Appeals, and if the house was
constructed on one end as it probably was, because it fronted Tejeron
Street (bearing street No. 227 Tejeron) according to the evidence, then
the backyard must indeed be quite big so that the two lights installed
behind the house despite their power, could not have illuminated all
that area, especially that part of t he fence behind which Viloria was
stationed, taking into account the gumamela and banana trees growing
there and which according to Benjamin himself, Eustacio’s son, was
very dark. It was therefore possible, if not probable that Viloria who
was squatting behind those banana trees and gumamela shrubs and even
outside the fence, intent on observing what was happening in the
direction of the house or houses being raided by the MIS, did not
notice or could not even see what was happening in the yard of
Eustacio, and that even if he noticed the light from the place where he
was squatting, he could not have possibly seen who turned it on nor
seen Eustacio as the latter walked towards the gumamela shrubs and
banana trees. For all he knew, Eustacio may have been one of the Huks
scared by the MIS raiders, who was trying to escape through the yard of
Eustacio and who, when surprised by the turning on of the lights in the
yard sought refuge and protection in the gumamela shrubs and banana
trees and then tried to get away by going over the fence, when he was
confronted by Viloria.

Again, the Court of Appeals says that Viloria being a trained
soldier and alerted in the ambuscades of Huks could not possibly
believe that Eustacio was a dissident. It said “no se concibe, pues,
corao Viloria, que debe estar entrenado contra las eciboscadas de los Huks,
podia creer que Sustacio era una disidente; * * *.” This statement
about Viloria being trained on ambuscades by Huks is not a finding but
only a conclusion. Because Viloria was an Army soldier then, the Court
of Appeals jumped to the conclusion that he must have been trained in
dealing with Huks, This unfortunate conclusion not only is not
supported by the record but it is contrary to the evidence itself which
is to the effect that Viloria was a raw recruit, having enlisted in the
Army only on January 8, 1951, less than three months before the raid.
In fact, the majority of this Court, disregarding the above conclusion
of the Court of Appeals, takes notice of Vlloria’s being very new in
the service and for this reason suggests that Viloria might merit
Executive Clemency.

Both the majority of this Court and the Court of Appeals would not
even grant that Viloria without any criminal Intent, acted recklessly
in firing his gun, without taking the necessary precautions to
ascertain the identity of Eustacio, and so is guilty only of homicide
thru reckless imprudence as was found by the trial court, and in
support of their stand, both courts cite the case of People vs.
Oanis, 74 Phil. 262. It may be stated in this connection that said case
was decided by a divided court, five for the majority, with Justices
Paras and Hontiveros strongly dissenting, the first being presently our
Honorable Chief Justice. The case of Oanis involved the shooting of an Innocent citizen
(Serapio Tecson) sleeping In a room, with his back to the door where
the appellants were, shot by the latter in. the honest belief that
Tecson was the dangerous criminal they were after. Chief Justice Paras
in his dissent said:

“In view of said order and the danger faced by the
appellants In carrying it out, they cannot be said to have acted
feloniously In shooting the person honestly believed by them fro be the
wanted man. Conscious of the fact that Balagtas would rather kill than
be captured; the appellants did not want to take chances and should
not be penalized for such prudence. On the contrary, they should be
commended for their bravery and courage bordering recklessness because,
without knowing or ascertaining whether the wanted man was in fact
asleep in his room, they proceeded thereto without hesitation and
thereby exposed their lives to danger.”

And in relation to this aspect of the case, as to whether or not
Viloria, if guilty at all, is guilty only of homicide through, reckless
imprudence, I am inclined to believe that the case of People vs.
Fernando, k-9 Phil. 75 cited by the trial court in support of its
decision is more applicable. In reversing the judgment of the trial
court finding Fernando guilty of and murder, sentencing him to twenty
years of cadana temporal, the Supreme Court in finding him guilty only
of homicide thru reckless negligence said:

“Taking into consideration the state of mind of the
accused at the time, and the meaning that he gave to the attitude of
the unknown person, in shooting the latter he felt that he was
performing his duty by defending the owners of the house against an
unexpected attack, and such act cannot constitute the crime of murder,
but only that of simple homicide. He can not be held guilty, however, as principal, with malicious intent, because he thought at the time
that he was justified in acting as he did, and he is guilty only
because he failed to exercise the ordinary diligence which,; under the
circumstances, he should have by investigating whether or not the
unknown man was really what he thought him to be. In firing the shot,
without first exercising reasonable diligence, he acted with reckless
negligence.”

The case of Fernando above cited, to me, is really similar to the present case, assuming that Viloria is guilty at all.

We who are mow in possession of all the facts disclosed by the
evidence presented at the trial know that Eustacio was a peaceful
citizen inside his own yard merely trying to drive or chase away the
person or persons whom he believed to be potential robbers or thieves,
and on the basis of said facts, one may say as do the Court of Appeals
and the majority that Viloria1s action in shooting him as wholly
unwarranted and uncalled for, because there was absolutely no danger to
him and besides, considering the age of Eustacio who was 68 years old,
and that he suffering from avitaminosis, he could not anyway have gone
per the fence to carry out his empty threats to kill. But how Viloria,
at the time, to know all these facts? How was he to know that Eustacio
was a peaceful citizen; that he was the per of the house and of the
yard enclosed by the fence; that was 68 years old and suffering from
avitaminosis and so could not possibly climb over the fence, and that
he was merely trying to scare him (Viloria) and his companions?

It is a settled rule and principle of law that a person accused of
and being held responsible for a criminal act must be judged, not by
the facts as they turned out to be after investigation and trial but
rather what he at the time honestly believed, them to be so, and that
if the facts he then believed them to be, justified his act, then he
must be held Innocent.

In the case of U.S. vs. Ah Cheng, 15 Phil. 488, this Court said:

“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.

* * *

” * * * On the contrary, the maxim here is Ignoratia facti excusat
(‘Ignorance or mistake in point of fact is, in all cases of supposed
offense, a sufficient excuse1), (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.’ ***.

‘”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.)”

I quote with approval the citation made by appellant’s counsel on page 20 of his brief, to wit:

“A person need not be in actual imminent peril of
his life or of great bodily harm before he may stop his assailant. It
is sufficient if in good faith he has a reasonable belief, from the
facts as they appear to him at the time, that he is in such imminent
peril; if he is threatened with death Dr some great bodily harm, and
has reasonable ground to believe and does believe that-his life is
about to be taken or such great bodily injury to be inflicted, he may
act safely upon appearances and kill his assailant, if that be
necessary to avoid the apprehended danger, though it may afterwards
turn out that there was in fact neither design to do him injury nor
danger that it would be done.” (Warren on Homicide, Vol. I, p. 716:
citing Glass vs. State, 201 Ala. 411, 78 So. 819; Dleburn vs. State, 16 Ala. App. 371, 77 So. 983).

Viloria in his testimony said that he shotEustaciobelieving him to
be a Huk who was attacking him with a bolo. Was Viloria justified in
thinking as he did? To answer this question we must try to analyze the
state of mind of Viloria at the time. Before the raid, he and his
companions had been briefed by their officer and told that there were
dangerous Huks in that area, among them NICK PAMINTUAN, the overall Huk
Commander of the Manila Area, a man who was fearless, and determined to
shoot it out with the officers of the law. As a matter of fact, on
September 22nd of the same year this same Huk Commander NICK PAMlNTUAN
was finally cornered by a combined posse of Army officers and soldiers
and Manila Policemen in Pandacan, Manila. Alone he battled them and
although he was killed, he also was able to kill Capt. Juan Pan op Id
of the Armed Forces and wound an agent of the Military Intelligence
Service (although according to paragraph 24 of the Third Amended
Information against Luis M. Taruc, the casualties were the killing of
Lt. Jose Reyes of the MPD and Lt. Juan Panoplo of the AFP, and the
wounding of Sgt. Rafael Redultin of the AFP), this, according to the
records of the Armed Forces and the Manila Police Department. (See page
13, Appellant’s Brief). As a result of that raid on April 1, 1951, 21
Huk suspects were apprehended, thus showing that the information about
the presence of Huks In the area raided was well founded. Ejar from
being a veteran soldier In the Army, as erroneously concluded by the
Court of Appeals, Vilerla was a raw recruit, and It was not his fault
that he was pressed into this secret and dangerous mission of raiding
or cordoning an area said to contain desperate dissidents and Huk
Commanders; and It was not In broad daylight either, but at midnight.
Then, suddenly from the darkness and the shadows of the gumamela shrubs
and banana trees he saw a figure advancing toward him brandishing a
bolo. i/hat was he to think? Peaceful and law-abiding citizens do not
usually go about at midnight, brandishing boloes and making threats. If
such a person Is met in any other place like a street or yard under
ordinary circumstances, one might yet think that he is a mere prowler
or burglar bent on stealing but not otherwise dangerous. But that night
of the raid, the surrounding area was said to be infested with
dangerous Huks and precisely Viloria was sent there to apprehend them
if they tried: to escape or even shoot them if they resorted to
resistance or aggression. It is true that the yard of Custacio was
just outside the area to be raided but one could not pin point and
determine accurately by metes and bounds the exact place where the
dissidents were supposed to be. It could be that their hideout as well
inside the line or cordon of soldiers but that when the dissidents were
surprised by the MIS agents said dissidents may have scattered and some
tried to escape into the surrounding area including the yard of
Eustacio, and that for all that Viloria knew the figure he saw that
night may have been one of them.

We should not judge Viloria too strictly nor harshly. Divesting
ourselves awhile of the serenity of mind and logical thinking and
reasoning of a judicial official, with all the true facts before him,
let us try to place ourselves in the situation and mental state of
Viloria at the time, riDt for- getting his untutored and simple mind
and his lack of training. As this Court well said in the case of D. S. vs. Santos, 36 Phil. 853, 855, in the course of its decision reversing a sentence of conviction of a policeman by the trial court:

“One should however not expect too much of an
ordinary policeman,. He is not presumed to exercise the subtle
reasoning of a judicial officer. Often he has no opportunity to make
proper investigation but must act in haste on his own belief to prevent
the escape of the criminal. To err is human. Even the most
conscientious officer must at times be misled. If, therefore,
under trying circumstances and in a zealous effort to obey the orders
of his superior officer “and to enforce the law, a peace officer makes
a mere mistake in good faith, he should be exculpated. Otherwise, the courts will put a premium on crime and will terrorize peace officers through a fear of themselves violating the law.”

From the point Of view of Viloria, was there aggression which he was
justified in repelling? Both the Court of Appeals and the majority
believe that there was no such aggression because Eustacio was a
peaceful citizen within his yard merely trying to scare away potential
robbers and marauders and that anyway he would not carry out his threat
because due to his age and his physical affliction, he could not have
possibly gone over the fence. I have already pointed out that Viloria
should be judged not by the facts as they turned out to be but by what
he in good faith believed them to be. Besides, to repel an aggression,
it is not necessary that the latter be consummated. In the case of U.
S. vs. Batungbacal, 37 Phil. 382, this Court said:

“In order that the assault may be repelled, it is
not necessary that it must have been perpetrated; it is sufficient that
there be an attempted assault. The law protects with this exemption
from liability not only the person who repels an aggression, but even
the person which tries to prevent an aggression that is expected.”

To constitute aggression it is not necessary that the attack or
assault be carried out. It is sufficient that it be shown by the acts
and by the attitude of the assailant that he will attack. The mere
opening of a knife and making a motion as if to make an attack
constitutes a real aggression; one who brandishes a knife and raises it
during a dispute, commits aggression; and the act of a wounded man
raising a club which he hold in his hands and advancing towards the
accused with an attitude of hitting him, constitutes real unlawful
aggression (Guevarra’s Commentaries on the Revised Penal Code, p. 11,
citing decisions of the Supreme Court of Spain. And in the opinion of
Viada, even a mere threat of an attack such as brandishing a knife with
which to stab one or pointing a gun to discharge against one, is
aggression (I Viada, 5th Ed., p. 173).

Viloria did not have to wait until the menacing figure had done over
the fence and within hitting distance struck at him or then
self-defense may have been too late. Besides, Viloria was not there as
a mere civilian permitted only to protect himself in case of
aggression. He was there as a peace officer to apprehend dissidents and
when in his opinion one of them attacked he could shoot him not only to
defend himself but also to disable or if necessary to kill a public
enemy.

Was Viloria required under the circumstances to retreat in order to
avoid inflicting injury on his assailant? A civilian under the
circumstances may have sought refuge in flight, but Viloria was not a
civilian. He was a soldier of the Armed Forces of the Republic with
traditions to uphold, and was expected to observe proper conduct in the
presence of the enemy. Asked by the Fiscal why he did not retreat, like
a true soldier he gave a most proper answer. He said: “I could not
retreat from that place without an order from my officer”, (t.s.n., p.
42) He was stationed in that place by his officer. He was as it were
occupying a battle or skirmish position, and without an order from his
officer he could leave that position only when driven by superior
force. To retreat from his position would have been an act of cowardice
and desertion of his post for which he could be court-martialed and
discharged dishonorably and in disgrace, and so he held his ground and
stuck to his post.

In the case of U.S. vs. Monica, supra, this Court said:

“A
police officer, in the performance of his duty, must stand his ground
and cannot, like a private individual, take refuge in flight; his duty
requires him to overcome his opponent. The force which he may exert
therefore differs somewhat from that which may ordinarily be offered in
self-defense. Bearing this in mind, we do not think that the appellant
in using his revolver against the deceased can be said to have employed
unnecessary force. The deceased attacked him with a deadly weapon; he
might, perhaps, have saved himself by running away, but this his duty
forbade.”

The Court Of Appeals and the majority lay stress on the fact that as
shown by the wounds of entrance and exit, the latter was lower, and
from this they draw the Inference that Viloria did not tell the truth
when he said that he shot Eustacio from a squatting position, because
otherwise the exit would have been higher than the entrance. Again, I
am constrained to state that both the majority and the Court of Appeals
apparently overlooked the fact as stated by Viloria without
contradiction, he fired the shot at the moment when Eustacio’s body was
bent over the fence with his left leg lifted as if to scale the fence
preparatory to going over it. In this position and forward inclination
of the body, a shot fired by one even from a squatting position in
front would naturally produce a wound where the exit would be lower
from the point of entrance. In this connection, to show that Eustacio
was shot right at the fence when he was bending over it, Lt. Regis
testified without contradiction or refutation that the morning
following the shooting, he inspected and went over the scene of the
shooting and found blood spots or stains on the ground, from the fence
to the house, evidently the blood from the wound of Eustacio as he
walked back from the fence to the house after being shot, the nearest
blood stains being on the dry leaves of a gumamela shrubs about a foot
from the fence. And what was Eustacio doing just before and at the
instant that he was shot? As asserted by Viloria, Eustacio was
brandishing his bolo and making threats. This is the finding of the
Court of Appeals itself, accepted by the majority. I quote:

“Eustacio no era sino un espantajo dentro del cerco,
que si levantaba su bolo, Id hacia para es- pantar, sin colocar de
ninguna manera a aquel in situaclon peligrosa”.

Of course we now know that in brandishing his bolo, Eustacio was
merely trying to scare and terrify, but this Viloria did not know at
the time, fie said that he thought that Eustacio is a Huk bent and
determined to kill him. In the important case of People vs.
Bayambao, 52 Phil. 3095 these are the facts. One night, while defendant
Bayambao was in his house, His wife told him that someone had thrown a
stone at the house. So he took his revolver and went down to
Investigate. We looked around under the house but saw no one. At that
time there were outlaws in the vicinity and several days before, a
soldier had killed two outlaws not far from the house. As Bayambao was
walking back to the stairs, about to go up the house, He heard a noise
and saw .a black figure with hands uplifted rushing at him. Without
giving any warning, he fired at the black figure thinking that he was
an outlaw, but who later turned out to be his own brother-in-law.
Charged with murder for the killing, he was found guilty by the trial
court and sentenced to cadena temporal. On appeal this Tribunal
acquitted him saying:

“The latter, on that occasion, acted from t he
impulse of an uncontrollable fear of an ill at least equal in gravity,
in the belief that the deceased was a malefactor who attacked him with
a kampilan or dagger in hand, and for this reason, he was
guilty of no crime and is exempt from criminal liability (art. 8, No.
10, Penal Code.)

“Furthermore, his ignorance or error of fact
was not due to negligence or bad faith, and this rebuts the presumption
of malicious intent accompanying the act of killing. In an analogous
case, this Court acquitted the accused (U.S. vs. Ah Cheng, 15 Phil.
488), and we deem the doctrine laid down in that case applicable to
this one.”

In the more recent case of People vs. Mamasalaya, et al.,
50 O.G. 1104, cited in the majority opinion, a Constabulary officer
while out on patrol and a mission to apprehend and if necessary kill
outlaws, ordered his men to fire on several house in the belief and
assurance that the inmates thereof bandits or outlaws. It turned out,
however, that said inmates were innocent civilians. For the death of
several of said civilians, the officer was charged with quadruple
murder and after trial was found guilty of the charge and sentenced to
20 years of reclusion temporal. On appeal he was acquitted by
this Tribunal on the ground that the shooting was justified for having
been done and effected under an honest mistake. To me, the present case
of Viloria is stronger. In the Mamasalaya case, the inmates of the
houses fired upon had done nothing or committed any act which might
lead or cause the Constabulary officer to believe that they were other
than law-abiding citizens. They were peacefully sleeping in their homes
and gave no provocation whatsoever; and yet said Constabulary officer
was exonerated just because he honestly believed, that the houses
harbored outlaws. In the present case, Viloria was engaged In a secret
and hazardous mission, a raid not on a mere opium joint or gambling den
where the inmates would not possibly offer any resistance, much less
make aggression, but on a re-grouping center and hideout of desperate
Huks and Huk Commanders who Viloria was told were determined to fight
and not to be taken alive, for which reason the Army sent one officer
and 36 soldiers armed with rifles. And it was midnight. Viloria did not
fire on said hideout but was merely standing guard observing and
awaiting developments. Then suddenly here comes this menacing figure of
Eustacio in the darkness and shadows of gumamela shrubs and banana
trees, advancing towards him and brandishing a bolo. Viloria honestly
thought and believed that Eustacio was a Huk advancing towards him to
attack with a deadly weapon. So he shot him, not only to protect
himself from what he believed was a real aggression and imminent peril,
but also to carry out the purpose of his mission which was to catch
Huks or kill them if resisted, in my opinion, he had a better reason
and more valid ground to be exonerated than the Constabulary officer in
case of Mamasalaya.

There is absolutely no reason to believe that Viloria intentionally
and deliberately shot Eustacio knowing him to be an innocent citizen,
just for the sake of killing or the sheer fun of it. He did not know
Eustracio, never met him before nor ever heard of him. Viloria is not a
wanton killer. He had already grown the lmpetousity, rashness or
irresponsibility of youth and teenage. He was already 26 at the time of
the shooting. He is not a product of the slums and other breeding
places of crime of a City. He was raised in. a rural community and he
was a farmer when he joined the Army, according to him, to serve his
country and possibly make a career of it. Unfortunately for him, less
than three months after his enlistment and before he could acquire the
experience and training of a real soldier, he was pressed into this
dangerous mission of raiding a Huk hideout.

I believe with the Court of Appeals and with the majority that
peaceful and law-abiding citizens should be protected. At the same
time, we should equally afford protection and give sympathetic
consideration to our peace agents and soldiers when they make honest
mistakes in the performance of their duties, specially when carrying
out dangerous missions where their lives are jeopardized and imperiled.
For there is nothing more demoralizing to said peace agents and
officery, nothing more destructive of their morale, than the thought or
realization on their part that their Government which sends them out on
dangerous missions, is heartless and entirely lacking in sympathy, and
is quick to punish them mercilessly for any mistake committed, however
honest said mistake, and regardless of the difficult conditions and
circumstances under which the mistake was committed. With that “Sword
of Damocles” ever hanging over their heads, to protect themselves, they
would always act halfheartedly, without any Initiative and play safe
and they would never catch the criminals and dissidents whom they are
supposed to protect society. As was said by this Court in the case of
People vs. Santos, supra, if the courts did not excuse and exculpate peace agents for mistakes committed by them in good faith then “the courts will put a premium on crime and will terrorize peace officers through a fear of themselves violating the law.” And, as we said In the case of People vs. Mamasalaya,

“All these considerations we have taken into account
in rendering verdict on the innocence or guilt of appellant Cabelin.
Because, If we make a mistake by holding criminally responsible and
sentencing to life Imprisonment or death, a peace officer sent on a
special or critical mission, who to accomplish his mission and at the
same time protect and insure the lives of his men had to act and acted
under facts which he honestly and In good faith believed to be true,
and under extraordinary conditions obtaining at the time, just because
later the facts turned out to be different, we might tho without
realizing, much less intending It, demoralize our Armed Forces
specially their officers, to the extent that In the future, to avoid
any possible criminal prosecution, they would be too slow,
over-cautious, vacillating and irresolute to the point of utter
inefficiency and impotence.”

If I have dwelt rather at length on this case, it is because altho I
have the greatest respect for the learned opinion of the majority, I am
afraid it failed to give due and sufficient consideration to certain
aspects of the case, besides accepting some, to me, erroneous and
unwarranted conclusions of the Court of Appeals, and I cannot get
myself to acquiesce in the conviction and punishment of a soldier of
the Republic whose only fault, in my opinion was in acting quickly as
he should and like a true soldier, on what he honestly believed the
facts to be at the time, in order to carry out his mission and to
defend himself, altho subsequent investigation showed the facts to be
otherwise. If guilty at all, Viloria should be held liable only for
homicide thru reckless imprudence as was found by the trial court.

For the foregoing reasons, I believe that Viloria should be
exonerated and I agree with the majority that he is entitled to
Executive Clemency, but immediately and not after service of a part of
his sentence.