THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. FILEMON ALMENDRALEJO, DEFENDANT AND APPELLANT.

This is an appeal taken by the defendant and appellant Filemon
Almendralejo from a judgment of the Court of First Instance of Iloilo,
finding him guilty of the crime of homicide, committed upon the person
of Basilio Nicetas Panes, and sentencing him to suffer fourteen years,
eight months and one day reclusion temporal, to indemnify the
heirs of the deceased in the sum of P1,000, and to pay the costs of the
action, under an information charging him with the crime of murder.

The appellant assigns four errors, which he contends the trial court
committed: (1) In not allowing the defendant to bail; (2) in not
finding as proven the following circumstances: (a) Unlawful aggression on the part of the deceased and his companions; (b) reasonable necessity of the means employed to prevent or repel the aggression; and (c)
lack of sufficient povocation on the part of the deceased; (3) in not
considering the exempting circumstance of article 8, No. 8, of the
Penal Code, that is, that the defendant, on the occasion of performing
a lawful act with due diligence, caused the arm to be discharged, the
bullet hitting the deceased and killing him by mere accident, without
fault or intention to do so; (4) in not giving the defendant the
benefit of reasonable doubt.

The following are the facts
proven at the trial by the prosecution: On November 11 and December 13,
1924, the municipal council of Alimodian passed two municipal
ordinances levying a municipal license tax and on January 15, 1925, an
ordinance providing penalties for violations of the preceding
ordinances, series of 1924, all of which were approved by the
provincial board of Iloilo. The persons affected by said ordinances
caused the justice of the peace, Basilio Nicetas Panes, to write a
protest addressed to the provincial fiscal of Iloilo. Said protest did
not meet with the approval of the municipal president of Alimodian and
he tried by all means possible to prevent the inhabitants from signing
it, through the municipal policemen, one of whom, the herein defendant
Filemon Almendralejo, went to the extreme of threatening to throw into
the grave and shoot whoever should sign it, and of saying that “some
day something will happen with the justice of the peace.” On the night
of January 24, 1925, about 7 o’clock, the defendant Filemon
Almendralejo was making an investigation of a certain trouble between
one Carlos and his own mother” in their house, when the justice of the
peace Basilio Nicetas Panes passed by, and called the policeman from
the middle of the street and asked what was the matter. Having been
informed of the nature of the trouble, the justice of the peace told
the defendant to arrest Carlos if he continued making noise. Filemon
Almendralejo answered that he could not do so without a written order
from the chief of police. Upon hearing this, the justice of the peace
raised his voice a little. After a while, a whistle was heard, followed
by three shots of revolver and the cry of the justice of the peace of
“Help me because I am wounded in the abdomen and I am going to die.”
The witness Telesforo Almenaza, who was passing near the place of the
affair and heard the first words exchanged by the justice of the peace
and the policeman, went to the place and asked Filemon Almendralejo,
“why shoot and not speak only? ” For his answer, the policeman pointed
his revolver at the one making the question, who pushed him aside to
deviate the point of the revolver, from which a shot came out. Upon
seeing himself thus threatened, Telesforo Almenaza seized the policeman
by the body and threw him to the ground, having fallen with his mouth
downward. As the policeman was younger and robust, Telesforo availed
himself of his advantageous position, placing himself upon his
adversary and seizing him by the neck until the other witness Saturnino
Santa Cruz arrived, whom he told to wrest the revolver from the hands
of Filemon Almendralejo because he wanted to shoot everybody.
Saturnino, in turn, placed himself on Filemon and grabbed the latter’s
hand which was holding the revolver, but was not able to wrest it
because the defendant bit him on the left forearm and would not have
released him had he not, in turn, bit him on the back. Right at this
moment, Maximo Teña arrived. Upon seeing him, Saturnino told him to get
the revolver from Filemon. Maximo came down to the canal and from there
helped Saturnino take away the arm of the policeman. Once in possession
of the arm, Maximo lifted him up by the head to prevent him from doing
any more harm, and the justice of the peace, who was beside him,
snatched it away and with its handle, struck Filemon Almendralejo on
the head, the latter being already in a standing position. Once order
was restored, the justice of the peace was taken in an automobile to
the Iloilo St. Paul’s Hospital, where he was examined by Dr. Mariano
Arroyo, who found in the middle of the abdomen above the umbilicus, an
orifice indicating that it was caused by a bullet which went in a
vertical direction. The defendant being in the police station of
Alimodian, said that it was lucky that he had not killed the other
four, as he would have done no matter whether he be hanged on the
following day or not.

The defense attempted to prove that
when Filemon Almendralejo passed in front of the house of Cayetano
Almeria, the latter called him and asked what he should do with Carlos
Almenaza and the latter’s mother, who were causing a public disorder.
Filemon answered that he did not think there was any disturbance. While
they were thus talking at the foot of the stairs of the house of
Cayetano, the justice of the peace, Basilio Nicetas Panes, arrived and
asked him, “What is the matter?” Cayetano and Filemon said good evening
to him, and the former related what was happening between Carlos and
his mother. The justice of the peace immediately became angry and
shouted, “Damn it, you policemen have no right nor authority to arrest
any person or family and much less a married couple who are in their
house because that is against the law.” While the justice of the peace
was saying this, he was face to face with Filemon and was raising his
rattan cane, which was one meter long, getting more and more angry. As
the justice of the peace told the policeman that he could not arrest
any person without any order in writing from him, Filemon answered,
“Mr. justice, if for instance this Carlos and his mother should be
fighting day and night in their own house, and among the neighbors
there should be one who should complain to the chief of police, and the
latter should designate a member of the police force to arrest Carlos
and his mother, may not the policeman arrest them ?” Upon this answer,
the justice of the peace got more angry and shouted “H * * *; what
power do you policemen have? Without my order you cannot arrest any
person.” After saying this, the justice of the peace seized him by the
left hand and attempted to pull him to the street, but was prevented
from doing so because the defendant told him, “Mr. justice, let us be
moderate, I am still talking here upstairs. Wait a minute, because I
also respect you, Mr. justice. Please talk to me in a low voice.”
Shortly thereafter Maximo Teña, Telesforo Almenaza, and Saturnino Santa
Cruz came. When Telesforo arrived at the foot of the staircase, he
asked, “Who is that man there?” Cayetano and Filemon said good evening
to him. Telesforo recognized Filemon by his voice and said, “So you are
the damned fool, presumptive, strict, wild policeman, who looks like an
egg that can be stirred within a pocket? Even if you should have eight
crowns, I would not be afraid of you. What do you want? Do you want to
fight? ” At this juncture the justice of the peace again pulled the
policeman downward taking him by the left wrist. Then Filemon told him,
“Mr. justice, wait a minute, because I am talking with Telesforo.”
Basilio Nicetas Panes did not pay him any attention and went on
dragging him down on the staircase. In view of this, the defendant blew
his whistle. The justice of the peace ordered Maximo to take the
revolver from the belt of the policeman, but the latter drew it out
therefrom and fired in the air outside of the house. Saturnino seized
him by the feet, while the justice of the peace was dragging and
seizing him by the neck. Thereafter, Saturnino and Maximo beat him on
the head with a stone. Filemon fired another shot in the air. The
justice of the peace caught him by the wrist, while Telesforo was
holding him by the neck. All were trying to wrest his revolver. The
justice of the peace was holding the barrel with his left hand, while
with the .right he was trying to wrest it, and as a result of that
struggle, another shot came out. After seizing him by the neck,
Telesforo threw him down to the canal where he fell with his face
downward. Once he had thus fallen, Telesforo placed himself upon him;
and Maximo and Saturnino beat him with stones on the head and the back.
When Saturnino succeeded in wresting the revolver from the hands of the
defendant, he handed it to Maximo and the latter to the justice of the
peace. Once the revolver was in the hands of the justice of the peace,
Saturnino held Filemon by the neck, and the latter bit him in the arm.
The justice of the peace attempted to shoot him, but the arm did not
operate. Not having accomplished his purpose, the justice of the peace
held the revolver by the barrel, and beat him with the handle on the
head, pounding on the same wound inflicted by the strikes with the
stone, as a result of which, he fell down unconscious. Filemon had no
intention to kill the justice of the peace.

In rebuttal, the
prosecution tried to establish that the contusions found on the head of
the defendant were caused by a hard body, such as the handle of a
revolver, but none of them with stone.

As may be seen, the
theory of the prosecution and that of the defense as to who provoked
the fight are directly in conflict with each other. The ante mortem
declaration of the deceased upon this point also differs somewhat from
that of the witnesses for the prosecution, for while the former affirms
that he called the defendant from the middle of the street and asked
him why he was threatening the people of the barrio of Buhay to prevent
them from signing the protest against certain ordinances recently
adopted by the municipal council of Alimodian, and that without just
cause said policeman showed an intention to shoot him, the witnesses
for the prosecution assert that the deceased called the defendant to
the street in order to ask him what was the matter, there arising a
difference of opinion between the one and the other, as to the proper
time of arresting those who commit a breach of the peace and order, the
justice of the peace saying that if the disorder would not stop he
could arrest Carlos, while the policeman believed that he could not do
so without a written order from the chief of police. The deceased then
talked insolently. The witnesses for the prosecution, as well as the
defense, agree upon the dispute between the justice of the peace and
the policeman about the police authority of the defendant to arrest
with or without writ those who disturb the peace within their house and
that in this dispute the justice of the peace raised the pitch of his
voice. Notwithstanding the great consideration to which the declaration
of a person at the point of death is entitled when he is about to
appear before the Supreme Judge to render an account of his acts on
earth and receive the deserved reward or punishment, without any more
interest than that of the salvation of his soul, when there exist
circumstances showing that his declaration might have been influenced
by the passion of anger and vengeance, said declaration must be taken
with great caution, in view of the natural inclination of man to
exonerate himself and justify his conduct (Underhill on Criminal
Evidence, par. 102). In the instant case, there is the circumstance
that the deceased was in bad terms with the defendant because the
latter was threatening the people in order that they should not sign
the protest written by him; that he made a statement of the motive of
the fight which is distinct from that testified to by the witnesses for
the prosecution; and that when he felt wounded, he attempted to take
vengeance against the policeman and tried to shoot him with the
latter’s own revolver with which the policeman had shot him, and as he
failed on account of the arm having become useless, he beat him on the
head with the handle thereof. Taking into consideration the antagonism
existing between the justice of the peace and the defendant on account
of the protest written by the former in favor of the persons affected
by certain municipal ordinances of an economical character and the
difference between the social and official positions of the two, it
appears more probable that the authority of the deceased having been
disregarded when his opinion upon the law on the matter of arrest was
questioned he wanted to impose a punishment by pulling him toward the
street, in which he was assisted by the witnesses for the prosecution,
Telesforo Almenaza, Maximo Teña, and Saturnino Santa Cruz; but it
cannot be accounted for how Filemon Almendralejo had to sound an alarm
with his whistle if he did not think that his person was in danger. The
aggression of which he was the subject on the part of the justice of
the peace and his companions was not, however, of such a nature as to
require the use of his revolver, firing it not only once but five
times, to give an alarm and defend himself, taking into account the
presence of strangers and the fact that his aggressors were not armed.
His defense that the arm was discharged while he was struggling with
his aggressors for the possession thereof is refuted by the statement
made by him at the police station that it was accidental or lucky that
he had not killed all the four of them, and that he did not care being
hanged on the following day.

For the foregoing reasons, we
are of opinion that the evidence shows conclusively and beyond a
reasonable doubt that the defendant is criminally liable as principal
for having taken direct part in the commission of the crime of homicide
defined and punished in article 404 of the Penal Code, the penalty
provided by the law being reclusion temporal in all its
extent. For the application of the penalty, it must be taken into
account that the provocation and aggression came from the deceased and
his companions, the defendant having only exceeded in his defense by
using a means which was reasonably unnecessary to repel the aggression;
wherefore the penalty lower in one degree than that provided by the law
is the one to be imposed in accordance with the provision of article 86
of the same Code, there having been present the greater number of the
requisites which are prescribed by article 8, case No. 4, for exemption
from criminal liability. The penalty lower in one degree than reclusion temporal is prision mayor,
that is, from six years and one day to twelve years. No other modifying
circumstance of criminal liability having attended the commission of
the crime, said penalty must be imposed in the medium degree, that is
to say, eight years and one day prision mayor.

For
the foregoing, the judgment appealed from is modified, and the
defendant-appellant sentenced to suffer the penalty of eight years and
one day prision mayor, the same being affirmed in all other
respects, with the costs of the action against the appellant and with
allowance of one-half of imprisonment suffered by the defendant as
detention prisoner. So ordered.

Avanceña, C. J., Malcolm, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.

Johnson, J., did not take part.

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DISSENTING

STREET, J.:

I have examined the record in this case and can by no means concur in
the modification of the sentence by which the term of imprisonment of
fourteen years, eight months and one day imposed upon the appellant by
the trial court is reduced to eight years and one day. The ante mortem declaration
of the deceased is quite clear and I believe that it states with
substantial truth the manner in which the homicide was perpetrated. The
most material part of this statement is as follows:

“On
January 24, 1925, at about 7 p. m., in Alimodian, Iloilo, Telesforo
Almenaza, Maximo Teña, Saturnino Santa Cruz and myself came from the
house of Agustin Albila, and when we came to Roosevelt Street of
Alimodian, I saw Filemon Almendralejo, municipal policeman of
Alimodian, conversing with Cayetano Almeria at the stairs of the house
of the latter. I called Filemon Almendralejo to the middle of the
street and asked him why he coerced the people of barrio Buhay not to
sign the protest against certain ordinances recently passed by the
municipal council of Alimodian. I had been advising him and told him
that I had worked much in his appointment as municipal policeman. When
he drew out his revolver and showed intention to shoot me, I caught his
other hand not holding the revolver and tried to get the revolver to
avoid being shot but he fired five shots and I was hit at my abdomen by
the second or third shot. He shot me intentionally by directing his
revolver right at my body when he fired. When my companions could seize
the revolver, I grabbed it from them and beat the head of Filemon
Almendralejo with it several times but this was after I was already
shot. My companions and myself did not bring any kind of weapon and we
did not have the least intention to cause trouble.”

This statement is corroborated in substantial features by the testimony
of Telesforo Almenaza, Maximo Teña and Saturnino Santa Cruz who were
near the scene of the homicide and heard what had passed, though all
did not see the fatal shot fired. The testimony of the witnesses for
the accused tending to show that the deceased justice of the peace was
the aggressor seems to me to be strained and unnatural and permeated
with perjury, as the trial judge believed it to be. It is my opinion
that the judgment appealed from is just and should have been affirmed.