THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. FAUSTINO CORTES Y MACASAIT, DEFENDANT AND APPELLANT.

This case has come to us on appeal from a judgment of the Court of First
Instance of the city of Manila whereby Faustino Cortes was convicted of the
crime of homicide and sentenced to the penalty of 14 years 8 months and one day
of reclusion temporal with its accessory penalties, to indemnify the
heirs of Pablo Montevirgen in the sum of P1,000 and to pay the costs.

The facts are as follows: Faustino Cortes who had been living in concubinage
with Marciana Bozmente separated from her three days before the crime, left the
house they had been occupying and went to live in another one nearby. In front
of said second house, on the night of August 21, 1916, the woman Bozmente and
her son Pablo Montevirgen appeared and roundly insulted the defendant, after
which Montevirgen challenged him to come down into the street. Cortes came down
and there a struggle of diverse success took place between him and Montevirgen
until Cortes, having overpowered his antagonist, was seen to get up his right
hand covered with blood and his left grasping a fan knife. Montevirgen also got
up, dragged himself along very painfully until finally he collapsed, fell down
and shortly afterwards died unconscious. Deceased had a deep wound in the base
of the neck from which blood flowed in abundance. “The cause of death,” says the
medical certificate, “was a hemorrhage produced by a wound in the right carotid
artery and in the inner jugular vein. The body bore seven other wounds
also.”

Faustino Cortes was charged with the commission of the crime of homicide and
after hearing the witnesses, most of them eyewitnesses, the court was convinced
of his guilt wherefore it sentenced him for said crime, committed with neither
extenuating nor aggravating circumstances, to the penalty aforestated.

The defendant appealed and, in this second instance, alleged that the trial
court erred in not taking account, for the purpose of reducing the penalty, of
the extenuating circumstance of immediate provocation.

The appellant is right in this contention; but the provocation should not be
estimated according to the statement of facts made by appellant, to wit, that
Marciana Bozmente went up into his house and while he was asleep, struck him in
the face with her sabot or wooden shoe, and, when he awoke, caught hold of his
shirt bosom and tried to drag Him outside, saying “Come here! It’s your hour
now.” That testimony not only is not corroborated but also conflicts with other
testimony declaring that the Bozmente woman did not move from the street from
whence she insulted the defendant—it does not appear that she entered the
house.

The proof of immediate provocation is found in the testimony of the witness
for the prosecution Joaquin Bas, an eyewitness from its beginning, truthful and
impartial, as shown by other testimony. He told of the insults uttered by the
mother and son in front of the defendant’s room; he saw upon the deceased’s
challenge, the defendant come down from his house; and he witnessed the struggle
in all its vicissitudes. Without those insults and threats the defendant would
not have come down and the struggle would not have taken place.

Moreover the appellant alleges that the trial judge erred also in not giving
due weight to the extenuating circumstance of unlawful aggression.

In respect to this point the lower court did not err. It is already a
well-settled rule, firmly established in many decisions interpretative of
article 8 of the Penal Code, that, after the accused accepts a challenge,
thereby placing himself in an unlawful status and one of force, the prior
aggression of his opponent, which, as it was not unexpected, could not catch him
off his guard, excludes the condition of lawful defense, for the challenge by
itself excludes the classification of self-defense that, totally or partially,
exempts from liability (decision by the supreme court of Spain, of March 8,
1897); or, as set forth in another decision by the same court (that of February
6, 1899), the right of lawful self-defense cannot validly be set up in behalf of
a person who voluntarily exposes his person to the consequences of a hand to
hand struggle with his adversary in which, for the reason that each of the
combatants has no other intention than to injure the other, the first act of
force, come from whichever of the two it may, cannot be held but to be an
accident of the fight itself and in nowise whatever as an unwarranted and
unexpected aggression which alone can legalize self-defense.

Taking into consideration the extenuating circumstance defined in paragraph 4
of article 9 of the Penal Code, the penalty should be imposed in the minimum
degree.

With the understanding, therefore, that the penalty imposed of reclusion
temporal shall be 12 years and one day of imprisonment, the judgment
appealed from is in all other respects affirmed and the costs of this instance
shall be against the appellant. So ordered.

Johnson, Carson, Araullo, Street, and Malcolm, JJ.,
concur.