THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. GINES ALBURQUERQUE Y SANCHEZ, DEFENDANT AND APPELLANT.

The
judgment appealed from finds the appellant Gines Alburquerque guilty of
the crime of homicide committed on the person of Manuel Osma and
sentences him to eight years and one day of prision mayor, and to indemnify the heirs of the deceased in the sum of P1,000, with the costs.

The appellant herein, who is a widower of fifty-five years of age and
father of nine living children, has been suffering from partial
paralysis for some time, walks dragging one leg and has lost control of
the movement of his right arm. He has been unable to work since he
suffered the stroke of paralysis. One of his daughters named Maria and
another, are married, while still another one is a nun. With the
exception of the other married daughter and the nun, alt of them,
including the appellant, live with Maria upon whom they depend for
support.

Among the daughters living with Maria, one named
Pilar became acquainted and had intimate relations later with the
deceased Manuel Osma about the end of the year 1928. It was then that
the appellant became acquainted with the deceased who frequently
visited Pilar in his house. The relations between Pilar and the
deceased culminated in Pilar’s giving birth to a child. The appellant
did not know that his daughter’s relations with the deceased had gone
to such extremes, that he had to be deceived with the information that
she had gone to her godfather’s house in Singalong, when in fact she
had been taken to the Chinese Hospital for delivery. The appellant
learned the truth only when Pilar returned home with her child.

Naturally the appellant was deeply affected by this incident, since
which time he has appeared sad and worried not only because of the
dishonor it brought upon his family but also because the child meant an
added burden to Maria upon whom they all depended for support. For some
time the appellant wrote letters, that at times were hostile and
threatening and at other times entreating the deceased to legitimize
his union with Pilar by marrying her, or at least, to support her and
his child. Although the deceased agreed to give the child a monthly
allowance by way of support, he never complied with his promise.

The appellant was in such a mood when he presented himself one day at
the office where the deceased worked and asked leave of the manager
thereof to speak to Osma. They both went downstairs. What happened
later, nobody witnessed. But the undisputed fact is that on that
occasion the appellant inflicted a wound at the base of the neck of the
deceased, causing his death.

After excluding the improbable
portions thereof, the court infers from the testimony of the appellant
that he proposed to said deceased to marry his daughter and that, upon
hearing that the latter refused to do so, he whipped out his penknife.
Upon seeing the appellant’s attitude, the deceased tried to seize him
by the neck whereupon the said appellant stabbed him on the face with
the said penknife. Due to his lack of control of the movement of his
arm, the weapon landed on the base of the neck of the deceased.

The trial court found that the appellant did not intend to cause so
grave an injury as the death of the deceased. We find that this
conclusion is supported by the evidence. In his testimony the appellant
emphatically affirmed that he only wanted to inflict a wound that would
leave a permanent scar on the face of the deceased, or one that would
compel him to remain in the hospital for a week or two but never
intended to kill him, because then it would frustrate his plan of
compelling him to marry or, at least, support his daughter. The
appellant had stated this intention in some of his letters to the
deceased by way of a threat to induce him to accept his proposal for
the benefit of his daughter. That the act of the appellant in stabbing
the deceased resulted in the fatal wound at the base of his neck, was
due solely to the fact hereinbefore mentioned that appellant did not
have control of his right arm on account of paralysis and the blow,
although intended for the face, landed at the base of the neck.

Therefore, the mitigating circumstance of lack of intention to cause so
grave an injury as the death of the deceased as well as those of his
having voluntarily surrendered himself to the authorities, and acted
under the influence of passion and obfuscation, should be taken into
consideration in favor of the appellant.

Under the facts
above stated, we cannot entertain the appellant’s contention that he
acted in legitimate self-defense inasmuch as he provoked and commenced
the aggression by whipping out and brandishing his penknife.

The defense likewise claims that, at all events, article 49 of the
Revised Penal Code, which refers to cases where the crime committed is
different from that intended by the accused, should be applied herein.
This article is a reproduction of article 64 of the old Code and has
been interpreted as applicable only in cases where the crime committed
befalls a different person (decisions of the Supreme Court of Spain of
October 20, 1897, and June 28, 1899), which is not the case herein.

The facts as herein proven constitute the crime of homicide defined and
penalized in article 249 of the Revised Penal Code with reclusion temporal.
In view of the concurrence therein of three mitigating circumstances
without any aggravating circumstance, the penalty next lower in degree,
that is, prision mayor, should be imposed.

Wherefore, pursuant to the provisions of Act No. 4103, the appellant is
hereby sentenced to suffer the indeterminate penalty of from one (1)
year of prision correccional to eight (8) years and one (1) day of prision mayor, affirming the judgment appealed from in all other respects, with the costs. So ordered.

Street, Abad Santos, Vickers, and Butte, JJ., concur.