THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. CLEMENTE AMPAR, DEFENDANT AND APPELLANT.

A fiesta was in progress in the barrio of Magbaboy, municipality of San
Carlos, Province of Occidental Negros. Roast pig was being served. The accused
Clemente Ampar, a man of three score and ten, proceeded to the kitchen and asked
Modesto Patobo for some of the delicacy. Patobo’s answer was; “There is no more.
Come here and I will make roast pig of you.” The effect of this on the accused
as explained by him in his confession was, “Why was he doing like that, I am not
a child.” With this as the provocation, a little later while the said Modesto
Patobo was squatting down, the accused came up behind him and struck him on the
head with an ax, causing death the following day.

As the case turns entirely on the credibility of witnesses, we should of
course not interfere with the findings of the trial court. In ascertaining the
penalty, the court, naturally, took into consideration the qualifying
circumstance of alevosia. The court, however, gave the accused the benefit of a
mitigating circumstance which on cursory examination would not appear to be
justified. This mitigating circumstance was that the act was committed in the
immediate vindication of a grave offense to the one committing the felony.

The authorities give us little assistance in arriving at a conclusion as to
whether this circumstance was rightly applied. That there was immediate
vindication of whatever one may term the remarks of Patobo to the accused is
admitted. Whether these remarks can properly be classed as “a grave offense” is
more uncertain. The supreme court of Spain has held the words “gato que aranaba
a todo el mundo,” “ladrones,” and “era tonto, como toda su familia” as not
sufficient to justify a finding of this mitigating circumstance. (Decisions of
January 4, 1876; May 17, 1877; May 13, 1886.) But the same court has held the
words “tan ladron eres tu como tu padre” to be a grave offense. (Decision of
October 22, 1894.) We consider that these authorities hardly put the facts of
the present case in their proper light. The offense which the defendant was
endeavoring to vindicate would to the average pe»son be considered as a mere
trifle. But to this defendant, an old man, it evidently was a serious matter to
be made the butt of a joke in the presence of so many guests. Hence, it is
believed that the lower court very properly gave defendant the benefit of a
mitigating circumstance, and correctly sentenced him to the minimum degree of
the penalty provided for the crime of murder.

Judgment of the trial court sentencing the defendant and appellant to
seventeen years four months and one day of cadena temporal, with the
accessory penalties provided by law, to indemnify the heirs of the deceased,
Modesto Patobo, in the amount of one thousand pesos, and to pay the costs is
affirmed, with the costs of this instance against the appellant. So ordered.

Arellano, C. J., Torres, and Araullo, JJ., concur.

Johnson, J., concurs in the result.

Street, J., did not
sign.

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CARSON, J., concurring:

I concur. I think, however, that the extenuating circumstances attending the
commission of the crime fall under the provisions of section 7 of the Penal Code
rather than under the provisions of section 5 of that Code as indicated in the
opinion.