THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. SANTIAGO GIMENA, DEFENDANT AND APPELLANT.

Charged with murder but subsequently
convicted of homicide after due trial in the Court of First Instance of
Oriental Negros, the herein defendant-appellant was sentenced to twelve
years and one day of reclusion temporal, with the accessory
penalties of the law, and to indemnify the heirs of his victim in the
sum of P1,000, with the costs of the proceedings. He appealed from said
sentence and now contends that the trial court erred in not holding
that he acted in self-defense and in not acquitting him of the crime
with which he had been charged.

A careful examination of the evidence presented by both the
prosecution and the defense during the trial shows, to the satisfaction
of this court, that on the night of May 9, 1933, the appellant
inflicted two wounds on Casimiro Mahinay, to wit: a contused wound on
the right eyebrow and a stab-wound on the left side of the abdomen. The
latter would cause the instant death of said deceased at the same place
where the incident occurred, that is, in the sitio of Cansuhi of the municipality of Guthulngan, Oriental Negros.

Just before the aggression, Felipe Ferolino, brother-in-law of the deceased Gasimiro Mahinay, met the appellant in said sitio
where the two, together with other residents thereof, had gone to
attend a meeting called by the councilor, which meeting did not take
place, however, because said councilor did not show up. As soon as the
two met, Felipe Ferolino, by way of either a frank or sarcastic remark,
asked the appellant how their girl friends were. It seemed that the two
had not been on good terms for the reason that about one month
previous, they had had a quarrel arising from a clandestine cockfight
because the appellant refused to pay a bet which Felipe Ferolino
demanded of him. In answer to his remark the appellant, in turn, asked
whether he wanted “practice”, meaning fight. Ferolino moved backward
and the appellant, taking that attitude as an acceptance of his
challenge, gave him a blow on the head with the cane he carried.
Ferolino fell to the ground and upon getting up he was stabbed on the
left hip and on the back by the appellant with a knife which the latter
was then seen to be holding in his left hand. When the deceased
Casimiro Mahinay, completely unarmed, approached the two for the
purpose of separating them or helping Ferolino, his brother-in-law, the
appellant gave him a blow with his cane on the right eyebrow and later
mortally wounded him on the left side of the abdomen with his knife.

The appellant attempted to prove by his testimony that if he found
it necessary to wound the deceased Mahinay, it was in self-defense
inasmuch as the latter held him by the neck, choking him in “such a way
that I could hardly breathe”. He also attempted to prove that the knife
with which he wounded the deceased belonged to Felipe Ferolino; that
the latter stabbed him with the knife in question; that when Ferolino
dropped the knife because the appellant struck him on the wrist with
his cane, the deceased held said appellant by the neck while Ferolino,
in turn, held him by the wrist, and that, making a final effort, he
succeeded in picking up the knife in question from the ground.

To corroborate the appellant, the defense witness Tirso Binaraw,
testifying as to the fight between Ferolino and Mahinay on one side,
and said appellant on the other, made the following statements:

“QUESTION OF THE FISCAL.	Tell what you know.
“ANSWER OF THE WITNESS.	What I have seen from a distance of about fifteen arm-lengths was that they were already fighting.

“Q.	How were they fighting?	—	A.	One Casimiro was holding Santiago by the neck. Felipe Ferolino and Santiago were trying to pick up something from the ground.
“Q.	Did you notice what they were trying to pick up from the ground?	—	A.	I did not because I was far away.
“Q.	What did you do then if you did anything?	—	A.	I merely looked at them from that distance and, after they had separated, the accused left and I likewise went home. I have not seen anything else besides.
“Q.	Did you not go near the place where they were?	—	A.	No, sir.”

This testimony of said witness shows that he did not really see what
he claims to have seen. Otherwise he would have seen how Ferolino
stabbed the appellant, as the latter claims, and also how the deceased
Casimiro Mahinay expired immediately after. Naturally he would have
testified on all these things instead of merely saying that he saw
nothing more than what he stated in his testimony.

There is nothing of record showing that the appellant received any
wound as a result of having been stabbed by Felipe Ferolino, as he
claims. The scar, the size of a twenty-centavo piece, which he had on
the upper part of his right parietal region, and described on page 26
of the transcript of the stenographic notes, cannot be that of a wound
caused by a stab with a knife because it is well known that a knife is
not a blunt but a short penetrating instrument. The very form of the
scar in question excludes the possibility that it is the result of a
wound caused by such an instrument.

This court agrees with the trial court that the scar in question is
the result of a contused wound and that it indicates that there had
been a fight between Felipe Ferolino and the appellant, wherein canes
or sticks were used. When the former fell to the ground as a result of
the first blow given by the latter with his cane, the deceased
approached the two for the purpose of separating them. The appellant,
believing that said deceased did so in order to help or side with
Felipe Ferolino, his brother-in-law, attacked the former with his cane.
In the heat of his passion due to the blow he received on the upper
part of his parietal region from said Ferolino, he wounded not only the
latter but also the deceased Casimiro Mahinay.

The knife with which the appellant wounded said deceased did not
belong to Felipe Ferolino but to said appellant, inasmuch as the
latter’s testimony, which his only evidence relative to such fact, is
contradicted by the testimony of said Ferolino, Felipe Opsar and
Saturnino Mahinay, who categorically asserted that the appellant
already had said knife in his hand from the beginning. It should be
noted that the appellant did not present said weapon. He said that he
had lost it because he had dropped it. (Exhibits A and A-l.) If it
really belonged to Felipe Ferolino, the appellant would not have
dropped it nor lost it just as he did not throw away nor lose the cane
with which he struck Ferolino and the deceased. He would have lost no
time in presenting the weapon in question in order to better prove that
it really belonged to Ferolino. On the other hand, from among so many
people who witnessed the incident, because according to the evidence,
many attended the meeting, the appellant presented not even one to
corroborate his testimony that it was Felipe Ferolino who drew the
knife in question.

This court attaches no importance to the contention that although
the appellant was holding the knife in his left hand and the cane in
his right, the deceased was wounded on the right side of the abdomen
instead of the left. This contention is naturally based on the
supposition that the appellant and the deceased were continually face
to face with each other during the fight. Such supposition, however, is
based only on the appellant’s testimony. On the other hand, in every
encounter or fight, particularly in cases where one does not look for
it, the antagonists do not always hold the same position.

This court further deems it unnecessary to dwell upon the
appellant’s contention that while the deceased was strangling him,
Felipe Ferolino at the same time held him by the right wrist with both
hands, because in cross-examination he could not help but admit that
said Ferolino then had a cane. Under such circumstances it was
difficult, if not impossible, for him to do what it is claimed he had
done.

Wherefore, the appellant’s claim that he acted in self-defense is
unfounded. It was he who provoked the fight between him and Felipe
Ferolino and likewise he was the aggressor. Under the circumstances
surrounding the commencement and development of the fight, there was
not the least necessity of his having used the knife in wounding
Casimiro Mahinay inasmuch as he was already armed with a cane, much
less taking into consideration that the deceased was entirely unarmed.
The justifying circumstance of self-defense, once the act against which
it is invoked is proven, should be satisfactorily established, and
without proof, it should necessarily be rejected.

This court agrees with the trial court that the act committed by
the appellant only constitutes the crime of homicide, not murder, but
does not believe that said appellant has any mitigating circumstance in
his favor. Wherefore, in view of the absence of any aggravating
circumstance, the judgment appealed from is hereby modified by imposing
upon the appellant the penalty of fourteen years, eight months and one
day of reclusion temporal. In accordance with the provisions of Act No. 4103, the minimum of such reclusion
is hereby fixed at seven years, without prejudice to the appellant
being credited with one-half of the period of the preventive
imprisonment he has heretofore undergone, in conformity with article 29
of the Revised Penal Code. As thus modified, the appealed judgment is
hereby affirmed in all other respects, with the costs against the
appellant. So ordered.

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