THE PEOPLE OP THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. TRANQUILINO BALANSAG, DEFENDANT AND APPELLANT.

DIAZ, J.:

The defendant has appealed for the purpose of
reversing the judgment rendered in this case, claiming to be innocent,
in the eyes of the law, of the death of Agapito Tandong. The latter died
as a result of a wound two and a half inches long which he received on
the left parietal region on the date and at the place stated in the
information.

At the trial, the appellant testified that he was
compelled to inflict the wound on the deceased with a bolo which he
found in the kitchen of Bernardo Bagsican’s house because said deceased,
without any motive whatsoever, attacked him with a similar instrument
or weapon, wounding him on the left temporal region, after having seen
him provoked and challenged to a fight by his (the deceased)
brother-in-law named Leopoldo Cagbabanua who was at that time armed with
a bolo, and also after he had succeeded in disengaging himself from the
former’s other brothers-in-law named Flaviano or Bibiano Cagbabanua and
Gregorio Leatila who had held him by the hands.

Appellant’s counsel de oficio, believing
that the defense set up in the trial court is untenable, in this
instance insists only on the argument that the appellant should be given
the benefit of the fourth mitigating circumstance, which is that of
immediate provocation or sufficient threat on the part of the deceased.
To that effect said counsel, however, states in his brief that “the
version most consistent with the truth is the testimony of the witness
for the prosecution, named Bernardo Bagsican, which is partly
corroborated by the other witness Leopoldo Cagbabanua and also by the
witness Inocenta Imperial, to the effect that the trouble arose from
said Leopoldo Cagbabanua’s refusal to deliver the losing cock, and that
during the fistic encounter between Bernardo Bagsican and Leopoldo
Cagbabanua, the deceased intervened and assaulted the defendant without
having been provoked and without being an original party to the affair.”
Such conclusion certainly does not justify the recommendation that the
most that may be conceded to the appellant is to estimate in his favor
the aforesaid mitigating circumstance.

In reviewing the case, we find the aforesaid
conclusion of defense counsel to be fully supported by the evidence and
there is absolutely nothing in the record to justify the trial court’s
conclusion that the appellant, upon seeing the deceased intervene in the
fight between Leopoldo Cagbabanua, brother-in-law of the latter, on one
side, and Bernardo Bagsican, on the other, because the deceased thought
that his brother-in-law was in danger, attacked said deceased with a
bolo, inflicting the wound which resulted in his death.

The evidence both for the defense and the
prosecution shows that, immediately before the deceased was wounded by
the appellant, the latter received from him a wound on the left temporal
region, a fact showing that said deceased, and not the appellant, was
the first aggressor.

The incident originated from a very trivial affair.
After the various persons invited by Bernardo Bagsican to help him
harvest his palay had been drinking tuba, and after some of
them had eaten, it was found that the remaining food was not enough for
those who had not yet eaten. The defendant-appellant, who had taken
charge of the preparation of the food, then proposed that Bernardo
Bagsican permit them to conduct cockfights at that place so that the
cocks which might be killed in the games could be cooked to feed those
who had not yet eaten. Bernardo consented and two cocks were forthwith
chosen to fight, arming them with their respective gaffs. In the first
cockfight, Leopoldo Cagbabanua bet on one cock and the appellant on the
other. The appellant lost and those present, particularly said appellant
and Leopoldo Cagbabanua, decided to have another cockfight and the
gaffs were put on the remaining two cocks for that purpose. In the
second cockfight the appellant won over Leopoldo Cagbabanua. The
understanding among the players and the owners of the cocks was that the
loser (and it is presumed that he would pay to the owner the value of
the cock) should deliver the losing cock to the appellant to be cooked
for those who had not yet eaten. Immediately after the second cockfight,
the appellant returned to the kitchen to boil water to enable him to
clean and prepare the losing cock for the stewpan. Leopoldo Cagbabanua,
instead of complying with said agreement, ordered a boy who was present
to take the losing cock to his house, to which the appellant objected,
telling Cagbabanua to deliver the cock to him so that he might prepare
and cook it. Appellant’s remark apparently did not please Leopoldo
Cagbabanua for, drawing his bolo, he invited the appellant to come down
if he was brave, accompanying such words, which constituted a real
challenge, with bolo strokes on the stairs of the house. Not content
with this, he went up to the kitchen to challenge the appellant, and
upon seeing that the latter had boiled water to clean the cock, he threw
said water away, striking the stove three times with his bolo. The
appellant, who had not lost his equanimity because he had drunk no tuba,
went inside the house where there were then gathered Flaviano or
Bibiano Cagbabanua, brother-in-law of the deceased and brother of
Leopoldo, the deceased, Gregorio Leatila, another brotherin-law of said
Bibiano and Leopoldo Cagbabanua, and the owner of the house Bernardo
Bagsican, for the purpose of calling Flaviano’s attention to said
Leopoldo’s behavior. Seeing Leopoldo’s hostile attitude as he tried to
approach the appellant, Bernardo Bagsican embraced him and struggled
with him, and the two fell, rolling down the stairs of the house. Upon
seeing this incident, Bibiano or Flaviano, brother of Leopoldo, and
Gregorio Leatila, brother-in-law of both, held the appellant by the
hands between them, and the appellant, in order to free himself, kicked
them. The deceased, who was so far passive, unsheathed his bolo and
wounded the appellant on the left temporal region probably because he,
being deaf, did not hear that the provocation came from his
brother-in-law Leopoldo. The appellant, upon feeling that he was
wounded, and seeing that the deceased was going to repeat the attack,
retreated to the kitchen. When the deceased, who followed him there,
again raised his hand in the act of wounding him for the second time,
the appellant grabbed a bolo that was there and made use of the same
more to defend himself from the aggression directed against him than to
attack, with the result that he struck the deceased with the bolo on the
left parietal region, inflicting upon him the wound which produced his
death a few minutes later. The deceased afterwards fled from the house,
expiring on the roadside some distance from the scene of the trouble.

Bernardo Bagsican and Inocenta Imperial, who
witnessed the incident, corroborated the appellant’s testimony that if
he wounded the deceased, it was merely to defend himself from the armed
assault and aggression directed against him by said deceased, placing
his life in real danger.

The prosecution and the trial court have given much
weight to Leopoldo Cagbabanua’s testimony in which he withheld many
things because it suited him, undoubtedly for fear that the
responsibility for the incident might be shifted to him, having caused
the same by his refusal to comply with the agreement relative to the
disposal of the losing cock and having furthermore challenged the
appellant to a fight. Leopoldo himself testified that he did not know
how or why the deceased Agapito Tandong was wounded; that he had not
observed anything extraordinary in the house, and that although he had
been very much worsted in the fight which he admitted having had with
Bernardo Bagsican, he did nothing, nor did he harbor any grudge
whatsoever against Bagsican, nor did he take any interest in inquiring
how the deceased died. All this appears in the following portions of the
testimony of said witness:

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The trial court failed to make any finding with
respect to the wound received by the appellant from the deceased, when
the very evidence for the prosecution shows that he received said wound
and that, had it not been for the presence of Inocenta Imperial who
somehow succeeded in deflecting the arm of the deceased as he raised it
against said appellant, the latter’s wound would have been of more
serious consequences, if not fatal.

If the version of the appellant and of the witnesses
Bernardo Bagsican and Inocenta Imperial is not correct, why did the
fiscal not present Flaviano or Bibiano Cagbabanua and Gregorio Leatila
who saw the incident and took part in the same, to testify and refute
them? Such failure to present them necessarily constitutes an argument
against the prosecution, in accordance with the rule that “evidence
wilfully suppressed would be adverse if produced.” (Section 334, No. 5,
Act No. 190.)

It is superfluous to state that, except with respect
to the fact that they saw the deceased with a wound on the left
parietal region, the witnesses for the prosecution Fidela Cagbabanua and
Cecilia Galanido, who are the widow and sister-in-law of the deceased,
deserve no credit There are such incongruencies in their testimony that
what they said relative to the manner in which the aggression, of which
the deceased was the victim, took place, becomes absurd. It is absurd
that from a distance of 50 brazas they could see said deceased pursued
by the appellant, bolo in hand. It is likewise absurd that they had time
to reach said house, ask the deceased what was the matter and
afterwards hold him by the shoulder to be invited by his wife to go
downstairs. It is also absurd that, while said deceased and his wife
were going down the stairs, which were very narrow and did not permit
more than two persons to go down at the same time, and while they were
on the third step, the deceased at the left side and the wife at the
right, the appellant, who had the bolo in his right hand, had given him a
blow on the left parietal region. If such things had happened, it
cannot be explained why the deceased, in order to save himself from the
danger that threatened him, did not jump out of the house, the same
being open on all sides as, according to the same two witnesses, it did
not yet have walls. Neither can it be explained why he had received only
one wound, precisely on the left parietal region, the house in question
being very small, for, according to the evidence for the prosecution,
it was only three brazas long and two brazas wide. It is not surprising
that said two witnesses should so testify, because they were interested
not only in the conviction of the appellant but in the exoneration of
Leopoldo Cagbabanua, brother of said Fidela and brother-in-law of
Cecilia, from all possible charges. Furthermore, the testimony of said
two women does not tally with that of said Leopoldo Cagbabanua in
various important details. It should be borne in mind that the latter
testified that, before he was thrown out of the house by Bernardo
Bagsican, nothing strange had occurred therein.

From the foregoing it is at once clear that the first
justifying circumstance of article 11 of the Revised Penal Code, which
is that of having acted in self-defense, should be estimated in favor of
the appellant because of the concurrence in his act of the three
requisites of justification provided by law, to wit: (1) Unlawful
aggression, on the ground that the aggression directed against him was
not only imminent but real, actual; (2) reasonable necessity of the
means employed to prevent or repel the aggression, because the weapon
with which he defended himself and inflicted the wound which caused
Agapito Tandong’s death was of the same nature as that employed by the
deceased in attacking him; and (3) lack of provocation, because the
provocation proven at the trial was not given by him but by Leopoldo
Cagbabanua, brother-in-law of the deceased.

In view of the foregoing considerations, our
conclusion is that the appellant was erroneously convicted of the crime
charged against him in the information. He is entitled to acquittal,
having acted in lawful self-defense.

Wherefore, reversing the judgment appealed from,
said appellant is acquitted of the crime of which he was accused and
convicted, and it is ordered that he be released immediately, with costs
de oficio.

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