THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. HONORATO BERGAÑO ET AL., DEFENDANTS. HONORATO BERGAÑO, APPELLANT.

On the night of December 5, 1927, on the occasion of the novena
of the death of one of the members of the family of Hermenegildo Franco, there
were many people in the latter’s house, situated in the barrio of Burias, of the
municipality of Mambusao, Province of Capiz. Among those present were Mariano
Franco, the deceased, and the defendants. At about 10 o’clock at night, while
the second table was being served, Mariano Franco arose from the table and went
into the kitchen, and coming face to face with Honorato Bergaño, who was then
acting as cook, said to him: “Why (ribaldry) have you given us the filth, the
leavings on the plates?” To which the defendant answered that was not true for
there was plenty of meat; but the deceased answered him, once more saying that
he always did so and thereupon kicked him in the stomach; and when the defendant
got up, he grabbed a bolo nearby and dealt him three blows with it, but only
touched him on the cheek. As a result of the blow in the face the deceased fell
and while getting up, Hermenegildo Franco, one of the defendants and
father-in-law of Honorato Bergaño, approached and stabbed the deceased in the
back. As a result of these wounds the deceased died the following day. Such is
the incident that gave rise to the information against the four defendants. The
sanitary inspector who conducted the autopsy issued the following certificate,
Exhibit A:

“To whom it may concern:

“This is to certify as sanitary inspector of Mambusao, Capiz,
that I had examined the corpse of Mariano Franco and found out the following
wounds: 

“1. On the left cheek cutting the upper part of the ear
transversal to the lower jaw, 4 inches long, 2 inches wide, H inches deep.

“2. On the left side of the back, 5 inches distance from the
shoulder, 3/4 inch long, 1/3 inch wide, and 1 1/2 inches deep.

“In testimony whereof, I sign this 7th day of December, 1927,
at Mambusao, Capiz.”

(Sgd.) “S. KAPUNAN
“Sanitary Inspector”

On the other hand, the defendant Bergano presented himself to
the authorities of Mambusao after the fight, and under oath, made the following
statement (Exhibit B), before the justice of the peace of said municipality :

“I, Honorato Bergano, married, a resident of the barrio of
Burias, Mambusao, Capiz, being duly sworn, do hereby declare:

“That Mariano Franco, the deceased, was having supper in the
house of my father-in-law Hermenegildo Franco during a wake on Monday December
5,1927, that after said deceased had finished his supper and had drunk water, he
came up to me in the kitchen and asked me: ‘Why is it (ribaldry) that you made
us eat the dirty food, giving us the leavings on the plates?’ I answered him
that was not true because there was plenty of meat, but he replied, saying once
more that I always did so and then kicked me in the stomach, thus knocking me
down almost unconscious, and when I got up, having my bolo, nearby, I
immediately grabbed it, and struck him three times, but I saw that he was
wounded only on the cheek, and when he was about to fall face downward, my last
blow struck him, but I don’t know where, and with this, I immediately went down
to return to my house, and I noticed that while we had been fighting, there were
many people in the kitchen, but when I went down I did not look to the right or
to the left. And from my house I came to the town in order to give myself up to
the authorities taking with me the bolo which I used in committing the crime.

In testimony whereof, I sign these presents in Mambusao, Capiz,
on this 7th day of December of 1927.

(Sgd.) “HONORATO BERGAÑO”

The court below found the defendant Honorato Bergaño guilty of
the crime of homicide and sentenced him to twelve years and one day reclusion
temporal with the accessories of law, to indemnify the deceased’s family in the
sum of P1,000 and to pay one-fourth of the costs of action, absolving the other
defendants Hermenegildo Franco, Lucio Ulit and Claro Delgado, with their part of
the costs de oficio.

Counsel for the defendant assigns the following errors: “(a)
The trial court erred in finding that the accused inflicted on the deceased more
than one wound; (b) the trial court erred in finding that the wound inflicted on
the deceased by the accused caused the death of the deceased; and (c) the trial
court erred in finding the accused guilty of homicide and in sentencing him to
imprisonment for twelve years and one day.”

There is no doubt that the defendant Bergano on the night in
question inflicted on the deceased Mariano Franco a wound with his bolo on the
left cheek, across the lower jaw cutting the ear, the wound being 4 inches long,
2 inches wide, and 1 1/2 inches deep. An eyewitness, Bienvenido Franco, 16 years of
age and one of those present at that gathering, testified that the defendant
Bergaño struck the deceased Mariano Franco a blow with his bolo, and that
Hermenegildo later caught hold of Mariano Franco and stabbed him with a dagger.
This witness was asked why Honorato Bergano and Hermenegildo Franco respectively
stabbed Mariano Franco with a bolo and a dagger; and he answered he did not know
the motive.

The defendant Bergano, testifying in his own behalf,
substantially reiterates the statement in Exhibit B above quoted. He admits that
he struck the deceased several blows with his bolo, but only remembers having
touched him once, that is, on the cheek; that the deceased had gripped his hand
and said defendant could not disengaged it because the other was a husky man;
that he had had no disagreement with the deceased before the incident in
question; that he did not intend to injure him; and that, if he struck him with
his bolo it was because of the fear that the deceased’s son, who was then
approaching, might kill him. In rebuttal Romualdo Franco, the son of the
deceased, testified that when he reached the place of the incident the defendant
had already left.

With respect to the nature of the wound inflicted by the
defendant Bergano on the deceased, conflicting statements were made by the
health officer Salvador Kapunan, and Dr. Trinidad Yusay, provincial physician of
Capiz, the former, or the health officer, stating that the wound which caused
the death of Mariano Franco was the one in the back, while Doctor Yusay states
that, according to the description of the wounds made by the health officer, the
wound on the face of the deceased could have been mortal, basing his judgment
upon the fact that said wound cut the principal artery in that region, producing
a hemorrhage which caused the death of the deceased.

Admitting as a proven fact that the appellant inflicted the
injury that caused the death of the deceased, it must likewise be admitted,
according to the same evidence, Exhibit B, adduced by the prosecution, that the
appellant acted in self-defense against the unlawful aggression of the deceased
and without any provocation from the defendant, that is, with the first and
third requisites of paragraph 4 of article 8 of the Penal Code; for it appears
from said document and from the uncontradicted statement of the defendant that
when the deceased faced him not only did he utter insulting words but that,
moreover, he kicked him in the stomach without the defendant’s having done
anything to provoke the deceased. That there was no reasonable necessity to use
the means employed by the defendant to repel the aggression grabbing the bolo at
his side in order to attack the deceased, seems indubitable to us and the more
so as it does not appear of record that the deceased carried any weapon with him
on the occasion in question. Therefore, applying article 86 of the Penal Code,
the proper penalty to be imposed upon the defendant is that of two degrees lower
than that prescribed by the law for the crime of homicide, or presidio
correccional in its minimum degree.

The judgment appealed from is modified and the accused is
sentenced to two years prision correccional, with the accessories of law. In all
other respects the judgment appealed from is affirmed with costs against the
appellant. So ordered.

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

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DISSENTING

MALCOLM AND OSTRAND, JJ.:

In our opinion the judgment should be affirmed.