CRIMINAL LAW 1
DAY 5
2. FELONIES (ART. 3-9, RPC)
Title One
FELONIES AND CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY
Chapter One
FELONIES
Article 3. Definitions. - Acts and omissions punishable by law are felonies (delitos).
Felonies are committed not only be means of deceit (dolo) but also by means of fault (culpa).
There is deceit when the act is performed with deliberate intent and there is fault when the
wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.
Article 4. Criminal liability. - Criminal liability shall be incurred:
1. By any person committing a felony (delito) although the wrongful act done be
different from that which he intended.
2. By any person performing an act which would be an offense against persons or
property, were it not for the inherent impossibility of its accomplishment or an
account of the employment of inadequate or ineffectual means.
Article 5. Duty of the court in connection with acts which should be repressed but which are
not covered by the law, and in cases of excessive penalties. - Whenever a court has
knowledge of any act which it may deem proper to repress and which is not punishable by
law, it shall render the proper decision, and shall report to the Chief Executive, through the
Department of Justice, the reasons which induce the court to believe that said act should be
made the subject of legislation.
In the same way, the court shall submit to the Chief Executive, through the Department of
Justice, such statement as may be deemed proper, without suspending the execution of the
sentence, when a strict enforcement of the provisions of this Code would result in the
imposition of a clearly excessive penalty, taking into consideration the degree of malice and
the injury caused by the offense.
Article 6. Consummated, frustrated, and attempted felonies. - Consummated felonies as well
as those which are frustrated and attempted, are punishable.
A felony is consummated when all the elements necessary for its execution and
accomplishment are present; and it is frustrated when the offender performs all the acts of
execution which would produce the felony as a consequence but which, nevertheless, do not
produce it by reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the commission of a felony directly or over
acts, and does not perform all the acts of execution which should produce the felony by reason
of some cause or accident other than this own spontaneous desistance.
Article 7. When light felonies are punishable. - Light felonies are punishable only when they
have been consummated, with the exception of those committed against person or property.
Article 8. Conspiracy and proposal to commit felony. - Conspiracy and proposal to commit
felony are punishable only in the cases in which the law specially provides a penalty therefor.
A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it.
There is proposal when the person who has decided to commit a felony proposes its execution
to some other person or persons.
Article 9. Grave felonies, less grave felonies and light felonies. - Grave felonies are those to
which the law attaches the capital punishment or penalties which in any of their periods are
afflictive, in accordance with Art. 25 of this Code.
Less grave felonies are those which the law punishes with penalties which in their maximum
period are correctional, in accordance with the above-mentioned Art..
Light felonies are those infractions of law for the commission of which a penalty of arrest
menor or a fine not exceeding 200 pesos or both; is provided.
Article 10. Offenses not subject to the provisions of this Code. - Offenses which are or in the
future may be punishable under special laws are not subject to the provisions of this Code.
This Code shall be supplementary to such laws, unless the latter should specially provide the
contrary.
2.1. CRIMINAL LIABILITIES AND FELONIES
Dolo (Freedom, Intelligence, Intent, or Mens Rea)
G.R. No. 140006-10 April 20, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROLLY PAGADOR, accused-appellant.
BELLOSILLO, J.:
ROLLY PAGADOR was charged with two (2) counts of murder for hacking of death the
spouses Herminigildo and Magdalena Mendez,1 and with three (3) counts of frustrated murder
for the physical injuries sustained by Shirley Mendez, Rosalinda Mendez and Emily Mendez-
Castro.2
The spouses Herminigildo and Magdalena Mendez were poor but hardworking peasants of
Alaminos, Pangasinan. The elderly couple had to toil long and hard in the fields to support
their seven (7) children. Ricardo, the eldest and only son, was an invalid; Emily was married;
and, with the exception of Shirley who was only ten (10) years old, their other daughters,
Nenita, Josephine, Marlyn, and Rosalinda, were of marrying age although still single. Among
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their children, Nenita was fated to introduce to the family the man who was to cause the
untimely death of the couple and bring untold sufferings to the surviving members of the family.
Accused Rolly Pagador and Nenita Mendez were sweethearts for more than two (2) years.
Although the accused was a mere tricycle driver Nenita's family had no objection to their
relationship; in fact they allowed him to drop by their house anytime and spend the night with
her. He was treated like a member of the family such that he would visit the Mendez household
even at 1:00 o'clock or 2:00 o'clock in the morning.
On 12 October 1996, at around 1:00 o'clock in the morning, Nenita and her sisters Emily,
Josephine and Rosalinda were awakened by shouts coming from their parents' room. It was
their mother Magdalena shouting, "Aray ko! Aray ko!" Thinking that their mother was again
having another bout with her perennial ailment, they hurriedly rushed to her room. Emily was
first to reach the room, followed by Josephine, then Nenita, and finally, Rosalinda. They were
shocked to see accused Rolly Pagador stabbing their mother with a bolo at the back with two
(2) hands holding the bolo.
The accused was kneeling behind their mother as he continuously stabbed her who was
already slumped on the floor with her legs outstretched. Their ten (10)-year old sister Shirley
was clutching her wounded stomach while lying on their mother's lap. Their father Herminigildo
was sprawled motionless on the floor. Quite instinctively, the four (4) sisters approached their
mother in an attempt to repulse the assailant but the latter swung his bolo at them, cutting
Emily's left index finger in the process. Forthwith, Emily rushed back to her room, picked up
her sleeping child and jumped out of the window.
Meanwhile, Nenita cried out, "Rolly! Rolly!" but the accused swung his bolo in silent rage.
Nenita retreated from the room and, like her sister Emily, jumped out of the window. As she
reached the ground, Nenita hid behind a tamarind tree. Moments later she saw the accused
passing by still wielding his bolo. Fearing that she would be discovered, she removed her
white dress and crawled towards a group that was making charcoal. As she went near them,
she put on her clothes and pleaded to them for help. Unfortunately, no one could extend any
assistance to Nenita, much less to any of the Mendezes, as everyone was too afraid to
confront the rampaging lothario.
According to Josephine, like her sisters, she rushed to her parents' room when she heard the
anguished cries of her mother. There she saw her father lying motionless on the floor, while
her younger sister Shirley was clutching her bleeding stomach. On bent knees the accused
repeatedly stabbed their mother at the back. Josephine immediately recognized Rolly
Pagador as the assailant because the room was well lighted by a kerosene lamp. Together
with her other sisters, she tried to approach the accused but the latter menacingly swung his
bolo at them hitting her forefinger. She retreated to her room and jumped out of the window.
Among the four (4) sisters, Rosalinda bore the brunt of Rolly's fury. She narrated that she was
the last one to leave her parents' room. As she escaped to her own room, Rolly went after her
and violently pulled her hair causing her to fall down. The accused sat astride on her stomach
and furiously hacked and stabbed her. As he directed the bolo at her face, Rosalinda held the
blade of the bolo and deflected the thrust to her left side. The accused made several more
thrusts with the bolo hitting her on the right ear, left breast, left upper portion of her arm and
right thigh. To stop the murderous assault, she played dead. Apparently the ruse succeeded
CRIMINAL LAW 1
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because the accused thereafter stood up and escaped through the window. With blood oozing
profusely from her numerous wounds Rosalinda slowly lost consciousness.
Shirley testified that she was awakened when she felt someone striking her on the stomach
and other parts of the body. She saw the accused swinging a bloodied bolo at her sisters and
saw her lifeless parents on the floor. But she could not ascertain who was responsible for her
wounds although she saw the accused wielding a bolo.
Dr. Rafael Manaois of the Western Pangasinan District Hospital testified that Shirley sustained
(a) a hacking wound lateral neck on left; (b) a hacking wound 7 cm. (L) hypochondriac with
intestinal evisceration, i.e., in layman's language, the intestine coming out of the stomach; (c)
a hacking wound 4 cm. Posterolateral aspect distal 3rd arm (L); (d) a hacking wound 5 cm.
Postero-lateral aspect middle third forearm; and, (e) a stab wound 4 cm., back, projecting
downward.
Interpreting the Legal Necropsy Examination Report prepared by Dr. Rafael Quebral on the
cadaver of Herminigildo Mendez, Dr. Glorioso Maramba testified that the deceased suffered
the following wounds: (a) a semi-circular chop wound on the head, nape, left, 3 x 4.5 cm.,
shallow; (b) a penetrating stab wound on the inferior portion of the sternum; (c) a blood clot
and unclotted extracted inside the chest cavity; (d) a wound on the thoracic cage on the
posterior aspect; (e) two (2) parallel stabs cut wound, vertical, on left shoulder anterior aspect
x x x cutting off the pectoralis and deltoid muscles; and, (f) a chop wound on the upper
extremity arm. Cause of death was massive intra-thoracic hemorrhage.
Also, according to Dr. Maramba, the deceased Magdalena Mendez sustained the following
injuries: (a) a stab wound below the scapula; and (b) a wound on the upper portion of the
lumbar region, back, left side, and another wound just below and slightly lateral directed
posteriorly, medially toward the stomach. Cause of death was massive bleeding inside the
abdomen and the thoracic cavity.
Dr. Vicente Tongson, Jr., Medical Officer III of the Western Pangasinan District Hospital,
testified that he examined and treated Rosalinda Mendez and Emily Mendez. He noted in his
medico-legal report that Rosalinda sustained about fourteen (14) hacked wounds on different
parts of her body; (a) right thigh; (b) left shoulder muscle; (c) wound immediately below wound
number 2; (d) left hand between the left thumb and the index finger; (e) right mandible on the
right ear; (f) left forearm third or left wrist; (g) left index finger; (h) below the nipple between
the 7th and 8th ribs; (i) below the ear; (j) base of the neck; (k) left shoulder; (l) right shoulder at
the back; (m) upper back; and, (n) back of the nape.
Likewise, the medico-legal examination by Dr. Tongson on Emily Mendez yielded (a) an
amputated index finger, third left hand; and (b) a lacerated wound on the fourth (4 th) finger,
third left hand.
Accused Rolly Pagador denied all the accusations against him. He narrated that on the night
of 11 October 1996 he had just finished his work as a tricycle driver when he decided to drop
by the house of his girlfriend Nenita Mendez. When he arrived at the Mendez' residence, he
met Nenita's father Herminigildo and casually greeted him as was his habit. Herminigildo told
him that Nenita was already asleep.
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Rolly was taken aback by the sudden change in the old man's attitude towards him. Nenita
had been his fiancée for more than two (2) years and her family was used to his visits even at
the most ungodly hours. But, ignoring Herminigildo's acerbic remark, he tried to go to Nenita's
room but Herminigildo blocked his way and tried to push him out of the house. Herminigildo
then went inside Nenita's room and when he reappeared moments later he was already armed
with a bolo. Without warning Herminigildo hacked him but the accused deftly dodged the blow.
According to the accused, he kicked the kerosene lamp and dashed towards the room of
Herminigildo where the latter's wife Magdalena was sleeping.
When the accused reached the room of the Mendez couple, Magdalena was already awake.
Imploringly, he asked Magdalena why her husband was acting the way he did. Before she
could answer, Herminigildo barged into the room and hacked his wife believing it was the
accused. The accused grappled with Herminigildo for possession of the bolo and succeeding,
he boloed the deceased causing the latter to fall face down. He denied having caused the
injuries suffered by Shirley and surmised that she might have been wounded during the
struggle.1âwphi1.nêt
Further the accused narrated that the sisters Emily, Nenita, Josephine and Rosalinda arrived
and upon seeing their lifeless father, the four (4) women furiously manhandled him. Some
kicked him while the others pulled his hair. When he noticed that Rosalinda was trying to take
hold of the bolo, he wrested it from her and swung it at the four (4) enraged women never
knowing whether anyone was hit. After the women took flight, he ran out in pursuit of Nenita
but she was nowhere to be found. He further claimed that while detained at the municipal jail,
he gathered reports from Nenita's relatives that Herminigildo had already committed Nenita to
marry a certain seaman which, according to him, explained the hostile treatment he received
from the deceased father.
The trial court found the accused guilty in all five (5) cases charged against him. Specifically,
he was convicted of frustrated murder on two (2) counts committed individually against Shirley
and Rosalinda and imposing upon him the penalty of reclusion temporal or twelve (12) years
and one (1) day to twenty (20) years; another penalty of arresto mayor for the crime of
frustrated murder against Emily Mendez-Castro; and, murder on two (2) counts committed
individually against the spouses Herminigildo and Magdalena Mendez for which the accused
was meted the supreme penalty of death for each count. 3
In finding the accused Rolly Pagador guilty as charged, the trial court said –
In short, the accused would want to foist before this (Honorable Court the
justifying circumstance of killing by way of self-defense, availing of Art.
11, Par. 1, (RPC) x x x x
What the Court cannot understand was, the insistence of the accused to
enter the room of Nenita since they are (sic) merely sweethearts.
Assuming arguendo that the deceased blocked his way when he
persisted to enter Nenita's room, this does (sic) not constitute unlawful
aggression on the part of the deceased as the latter had the perfect right
to allow or not the entry of persons in his house; that if there was unlawful
aggression, it was not the deceased who committed the unlawful
aggression, but the accused x x x x
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If it is true that the accused stabbed the deceased in order to defend
himself, it defies reasons why the accused have (sic) to stab the
deceased several times inflicting wounds on the chest, left shoulder, arm,
nape, infra-scapular region x x x x4
On automatic review, accused-appellant laments the failure of the trial court to give weight to
his plea of self-defense in the light of his unrebutted testimony that established the elements
of this justifying circumstance. In support of his contention, he insists that the following facts
have been sufficiently established: (a) Although not yet married to Nenita, he had already
been going to their house, and often slept there; (b) If he had a bolo and the intention to kill
the deceased spouses, he would have right then and there, at the ground floor of the two-
storey house, first killed Herminigildo Mendez, who met him at the door. The fact is undisputed
that Herminigildo died inside his own bedroom where his wife and youngest daughter Shirley
were sleeping; (c) It was the deceased Herminigildo who was in fact the aggressor when he
struck him with a bolo but accidentally hit his own wife; and, (d) Even more enraged, the
deceased Herminigildo assaulted him more aggressively leaving him with no other choice but
to disable him with the deceased's own weapon.
We do not agree. In light of the established evidence, accused-appellant's insistence on his
incredible story is like forcing a square peg into a round hole. We are confounded how he
could possibly invoke self-defense in view of the contrary findings of the medico-legal officers
and the credible testimonies of the prosecution witnesses.
We do not believe accused-appellant's claim that Herminigildo was killed when he
overpowered and hacked him (Herminigildo) with his own bolo during their fatal encounter.
The multiplicity and nature of the injuries inflicted on the deceased belie his claim. Herminigildo
suffered stab wounds on the chest, left shoulder, arm, nape, and other portions of his body
while Rolly emerged unscathed. He suffered no lacerations or even abrasions despite his
supposed vicious encounters not only with the armed Herminigildo but also with four (4)
enraged women. A plea of self-defense cannot be justifiably appreciated where it is not only
uncorroborated by independent and competent evidence, but also extremely doubtful by
itself.5
Self-defense as a justifying circumstance must fail where unlawful aggression on the part of
the person injured or killed was not properly established. According to accused-appellant,
when Herminigildo Mendez barged into the room and accidentally struck his wife with a bolo,
accused-appellant after a brief scuffle took possession of the weapon and hacked the
deceased. At this point, it cannot be claimed that unlawful aggression existed. Granting that
unlawful aggression initially existed, the same ceased as soon as the danger on the life and
limb of accused-appellant vanished when he wrested the bladed weapon from the deceased.
Accused-appellant's testimony that Magdalena was accidentally boloed by her husband hitting
her on the back is adverse to the testimonies of the four (4) prosecution witnesses where they
said that accused-appellant repeatedly stabbed their mother at the back. The autopsy report
showing that the deceased Magdalena Mendez sustained several hacking wounds could not
in any way be characterized as accidental. Her wounds were more indicative of a deliberate
and resolute attempt by the perpetrator to snuff out her life. The nature and number of wounds
are constantly and unremittingly considered important indicia which disprove the plea of self-
defense.6
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Accused-appellant now bewails his conviction for triple frustrated murder notwithstanding the
absence of any clear showing of any intent on his part of kill the three (3) private offended
parties. He does not deny that he hurt Emily and Rosalinda but their injuries were not fatal.
Intent to kill was not in his heart. As for Shirley, he emphatically stated that he never laid a
hand on her. As far as he was concerned, Shirley was wounded when he and Herminigildo
struggled for the possession of the bolo and fought each other to death.
The pivotal issue is to determine whether the court a quo correctly convicted accused-
appellant of three (3) counts of frustrated murder. Let us examine the factual backdrop of each
case.
As regards Rosalinda, we gather from her testimony that when she rushed out of her parent's
room, accused-appellant stood up and chased her. Overtaking her, accused-appellant pulled
her hair back which caused her to stumble. He sat on her stomach and tried to hack her on
the face but she gripped the bolo with her two (2) hands. But her assailant pulled the bolo
from her hands and hit her successively on the right ear and other parts of her body. If only to
stop the relentless assault, Rosalinda pretended to be dead. Before finally abandoning his
quarry, Rolly swung the bolo for the last time and hit her on the thigh. Going by the evidence
for the prosecution, we agree with the finding of the court a quo that accused-appellant is
guilty of frustrated murder against Rosalinda Mendez as charged. 7 Accused-appellant had
already performed all the acts of execution which tended to produce the death of Rosalinda
but failed to cause her death by reason independent of his own free will. We observe that
when the perpetrator stood up and left the crime scene it was on the belief that he had
consummated his heinous act, not suspecting that Rosalinda was merely feigning death. In
other words, the subjective phase had already been passed. On this point, the ruling in People
v. Eduave is appropriate - 8
The subjective phase is that portion of the acts constituting the crime
included between the act which begins the consummation of the crime
and the last act performed by the offender which, with the prior acts,
should result in the consummated crime. From the time forward, the
phase is objective. It may also be said to be that period occupied by the
acts of the offender over which he has control that period between the
point where he begins and the point where he voluntarily desists. If
between these two points the offender is stopped by reason of any cause
outside of his voluntary resistance, the subjective phase has not been
passed and it is an attempt. If he is not so stopped but continues until he
performs the last act, it is frustrated.
With respect to Shirley and Emily, we are of the opinion that the court a quo incorrectly
convicted accused-appellant of frustrated murder in both cases. 9 Prosecution witnesses
Josephine and Rosalinda Mendez testified that when they entered the room of their parents,
they saw accused-appellent Rolly Pagador stabbing their mother Magdalena, while Shirley
who was lying on the lap of her mother was holding her bleeding stomach. Both witnesses
disaffirmed having seen the person responsible for the injuries suffered by Shirley although
they were certain it was accused-appellant as there was no other stranger in the house
swinging a bolo and who could have done it.
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The principal and essential element of attempted or frustrated homicide, or murder, is the
intent on the part of the assailant to take the life of the person attacked. Such intent must be
proved in a clear and evident manner to exclude every possible doubt as to the homicidal
intent of the aggressor. Although we can safely assume that the injuries sustained by Shirley
were inflicted by accused-appellant, the factual environment of the case is inconclusive as to
whether he was impelled to injure Shirley purposely to kill her. Even Shirley stated that she
was awakened when someone struck her and she felt excruciating pain in her stomach. In
short, no one except probably accused-appellant could shed light on the circumstances which
led to the wounding of Shirley, but this notwithstanding, the onus probandi lies not on
accused-appellant but on the prosecution. The inference that the intent to kill existed should
not be drawn in the absence of circumstances sufficient to prove this fact beyond reasonable
doubt.10 When such intent is lacking but wounds were inflicted, the crime is not frustrated
murder but physical injuries only – less serious physical injuries in the present case
considering the medico-legal's expert opinion that the wounds sustained by Shirley would
require medical attendance of more than two weeks or more than fourteen (14) days. 11
In the same vein, we cannot also conclude with certainty that the injuries inflicted on Emily
were the result of the murderous intent of accused-appellant. Emily testified that as she
approached her mother, accused-appellant swung his bolo, cutting her left index finger and
lacerating her left ring finger. Accused-appellant did not pursue her as she ran out of the room
and jumped out of the window. Apparently, his purpose was merely to drive away the four (4)
sisters and dissuade them from attacking him. Thus, in evaluating the circumstances of the
case, we fail to find any trace of intent or inclination on the part of accused-appellant to kill
Emily ever mindful that in criminal cases there is no room for conjectures as the quantum of
proof required must be beyond reasonable doubt. From the cold facts of the case, the crime
committed against Emily was not frustrated murder but only serious physical injuries.
We are quite perplexed as to how the lower court arrived at the "appropriate" penalties
considering that it never discussed the modifying circumstances. The answer is left for us to
discover. We therefore reiterate that judges must strive to be more thorough in crafting their
decisions always conscious of the constitutional injunction that decisions must state the facts
and the law upon which they are based. This assumes infinite significance in the present case
given the gravity of the offenses involved.
As regards the modifying circumstances, we find that while the Decision can be sustained
insofar as the killing of Herminigildo Mendez could not be an act of self-defense, its conclusion
as to the existence of a qualifying circumstance, presumably treachery, raises a doubt not
altogether fanciful.12 Treachery as a qualifying circumstance may not be deduced from mere
presumptions. The fact that accused-appellant employed ways and means in the execution of
the crime tending directly and especially to ensure it must be proved with convincing evidence.
Treachery cannot be appreciated against accused-appellant because there is no showing
whatsoever that he adopted a mode of attack to ensure his safety from any retaliatory act on
the part of the offended party. It was established that when the prosecution witnesses entered
the room of their parents, their father Herminigildo was already lying on the floor bloodied and
lifeless. In short no one saw the actual killing. In the absence of any witness, the manner and
mode of attack employed by accused-appellant could not be established with certitude. For
this, the killing of Herminigildo Mendez should only be considered as homicide, not murder. 13
We cannot however similarly conclude with respect to the killing of Magdalena Mendez.
Evidence adduced by the prosecution clearly showed that accused-appellant repeatedly
stabbed the unarmed victim who was all the time shielding and protecting her wounded child
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Shirley. The defenseless victim could not possibly put up any retaliatory or defensive measure
against the onslaught of the attacker's fury. In view hereof, treachery was properly appreciated
and the killing was correctly classified as murder.
Incidentally, the Information in Crim. Case No. 3285-A alleges treachery, evident
premeditation and nighttime. Technically, we cannot appreciate nighttime since the same is
absorbed by treachery. Neither can we justify any finding of evident premeditation in the
absence of proof that accused-appellant had clung to a determination to eliminate Magdalena
Mendez. Therefore, it cannot be said that there was sufficient lapse of time between the
determination and the killing to allow accused-appellant to overcome the resolution of his will
had he desired to hearken to its warnings. Thus the murder of Magdalena was not attended
by any other modifying circumstance.
As regards the killing of Herminigildo Mendez, a victim of homicide, the penalty under Art. 249
of The Revised Penal Code is reclusion temporal, the range of which is twelve (12) years and
one (1) day to twenty (20) years. Considering the presence of the aggravating circumstance
of nighttime14 and applying the Indeterminate Sentence Law, the maximum of the imposable
penalty shall be taken from the maximum period of reclusion temporal, which is seventeen
(17) years four (4) months and one (1) day to twenty (20) years, while the minimum shall be
taken from the penalty next lower in degree, which is prision mayor, the range of which is six
(6) years and one (1) day to twelve (12) years, in any of its period.
The penalty for murder under Art. 248 of The Revised Penal Code is reclusion perpetua to
death. Parenthetically, Art. 63, 2nd par., provides that "in all cases in which the law prescribes
a penalty composed of two (2) indivisible penalties the following rules shall be observed in the
application thereof: x x x x 2. (W)hen there are neither mitigating nor aggravating
circumstances in the commission of the deed, the lesser penalty shall be applied." 15 Thus, the
imposable penalty being composed of two (2) indivisible penalties, and there being no
modifying circumstance, the lesser penalty of reclusion perpetua shall be imposed on
accused-appellant for the killing of Magdalena Mendez.
The less serious physical injuries suffered by Shirley Mendez is defined under Art. 265 of The
Revised Penal Codewhich provides that "(A)ny person who inflicts upon another physical
injuries not described as serious physical injuries but which shall incapacitate the offended
party for labor for ten (10) days or more, or shall require medical attendance for the same
period, shall be guilty of less serious physical injuries and shall suffer the penalty of arresto
mayor."
As regards the frustrated murder of Rosalinda Mendez, the penalty one (1) degree lower
than reclusion perpetua to death, which is reclusion temporal, shall be imposed pursuant to
Art. 250 of The Revised Penal Code in relation to Art. 50 thereof. In the absence of any
modifying circumstance,16 the maximum penalty to be imposed shall be taken from the
medium period of the imposable penalty, which is reclusion temporal medium, while the
minimum shall be taken from the penalty next lower in degree, which is prision mayor in any
of its periods.
The offense for the physical injuries inflicted on Emily Mendez is properly classified as serious
physical injuries under Art. 263 of The Revised Penal Code which states that "(A)ny person
who shall wound, beat, or assault another shall be guilty of serious physical injuries," and par.
3 thereof provides that "the penalty of prision correccional in its minimum and medium periods,
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if in consequence the person injured injured shall have become deformed, or shall have lost
any part of his body, or shall have lost the use thereof." Complaining witness Emily Mendez
lost her left index finger by amputation as a result of the crime, and appreciating treachery as
an aggravating circumstance,17 evident premeditation although alleged but not having been
proved, the imposable penalty shal be prision correccional in its minimum and medium
periods the range of which is six (6) months and one (1) day to four (4) years and two (2)
months. Applying the Indeterminate Sentence Law, the minimum shall be taken from the
minimum of the imposable penalty, which is six (6) months and one (1) day to one (1) year
eight (8) months and twenty (20) days, and the maximum shall be taken from its medium
period, which is one (1) year, eight (8) months and twenty-one (21) days, to two (2) years
eleven (11) months and ten (10) days.
The real motive that triggered the commission of such hideous crimes appears stashed
somewhere in the confused mind of accused-appellant. Indeed, it is not unlikely that fierce
jealousy, as he himself hinted, may have unleashed his demonic, infernal frenzy. For, truly,
intense love can evoke not only the most noble of sentiments but also even the basest of
man's passions. Nonetheless, motive in the instant case is now inconsequential in view of the
positive identification of accused-appellant by the prosecution witnesses who saw and clearly
demonstrated how he perpetrated the gruesome transgressions of the law.
The complexity and variance in the offenses committed against the five (5) members of the
Mendez family in contrast with the lower court's sweeping conviction for murder and frustrated
murder betray a glaring disregard for the varying legal implications and the actual peculiarities
of accused-appellant's varied criminal acts. Judges, who are called upon to administer the law
and apply it to the facts, should be studious of the principles of the law and diligent in
endeavoring to ascertain the facts. They are in the frontline of the sacred task of dispensing
justice to all; hence, a dispassionate, assiduous and devoted discharge of their duties is
demanded of them at all times.
WHEREFORE, the Decision of the Regional Trial Court of Alaminos, Pangasinan
is MODIFIED as follows:
1. In G. R. No. 140006 (Crim. Case No. 3284-A), accused-appellant Rolly
Pagador is found guilty of Homicide (instead of Murder as found by the
trial court) and I sentenced to suffer an indeterminate prison term of eight
(8) years four (4) months and ten (10) days of prision mayor medium as
minimum, to seventeen (17) years six (6) months and twenty (20) days
of reclusion temporal maximum, as maximum, and to pay the heirs of
Herminigildo Mendez the amounts of P50,000.00 as civil indemnity and
another P50,000.00 for moral damages;
2. In G. R. No. 140007 (Crim. Case No. 3285-A), accused-appellant is found
guilty of Murder (as likewise found by the trial court) and is sentenced to
suffer the penalty of reclusion perpetua and to pay the heirs of
Magdalena Mendez the amounts of P50,000.00 as civil indemnity and
another P50,000.00 for moral damages;
3. In G. R. No. 140008 (Crim. Case No. 3286-A), accused-appellant is found
guilty of Less Serious Physical Injuries (instead of Frustrated Murder
as found by the trial court) and is sentenced to suffer a straight prison
term of four (4) months and ten (10) days of arresto mayor maximum;
4. In G.R. No. 140009 (Crim. Case No. 3287-A), accused-appellant is found
guilty of Frustrated Murderand is sentenced to an indeterminate prison
5

term of eight (8) years four (4) months and ten (10) days of prision
mayor medium as minimum, to sixteen (16) years two (2) months and ten
(10) days of reclusion temporal medium as maximum; and
5. In G.R. No. 140010 (Crim. Case No. 3288-A, or CA-G.R. CR No. 23485,
erroneously numbered G.R. NO. 143934), accused-appellant is found
guilty of Serious Physical Injuries (instead of Frustrated Murder as
found by the trial court) and is sentenced to an indeterminate prison term
of ten (10) months and twenty (20) days of the minimum period of prision
correccional minimum and medium, as minimum, to one (1) year ten (10)
months and twenty (20) days of the medium period of prision
correccional minimum and medium, as maximum.
Consequently, G.R. No. 143934, which came from the Court of Appeals as CA-G.R. CR No.
23485 after it was erroneously elevated thereto, is now disregarded it being a mere duplication
of G.R. No. 140010. Costs de oficio.
SO ORDERED.
Dolo (Freedom, Intelligence, Intent, or Mens Rea)
G.R. No. 166502 October 17, 2008
FRANCISCO DE GUZMAN, petitioners,
vs.
PEOPLE OF THE PHILIPPINES, respondents.
DECISION
VELASCO, JR., J.:
The Case
This is a Petition for Review on Certiorari under Rule 45 of the August 27, 2004 Decision1 and
November 30, 20042Resolution of the Court of Appeals (CA) in CA-G.R. CR No. 25253
entitled People of the Philippines v. Ramon Valdez, et al. The assailed decision affirmed the
September 15, 2000 Decision of the Regional Trial Court (RTC), Branch 67 in Bauang, La
Union in Criminal Case No. 1214-BG, which found petitioner Francisco de Guzman guilty of
the crime of robbery with force upon things, while the assailed resolution denied petitioner’s
Motion for Reconsideration.
The Facts
Private complainant Lucia Valdez married Agustin Valdez sometime in 1973, following the
death of Agustin’s first wife, Presentacion. The relationship of Lucia and Agustin, however,
thereafter turned sour and the two separated. Agustin went to the United States of America
and Lucia remained in the couple’s house in Sobredillo, Caba, La Union.3 But after the July
16, 1990 earthquake, Lucia and her children temporarily moved out of their residence and
stayed in an apartment in Paringao, Bauang, La Union.4
CRIMINAL LAW 1
DAY 5
During this time, Agustin learned that Lucia had been selling their personal properties.
Alarmed, he asked Ramon Valdez, his son with Presentacion, to retrieve whatever was left in
their house as those properties belonged to Ramon’s mother. Ramon, who was also residing
within Sobredillo, Caba, La Union, readily obeyed his father. Thus, sometime during the first
week of September 1990, Ramon went to Lucia’s house which was then closed and
uninhabited. Consequently, Ramon demolished the north eastern portion of Lucia’s kitchen to
gain entry. He then solicited his neighbors’ help in bringing out the properties from Lucia’s
house. Among those who assisted Ramon were Marlon Gatchalian, Elpidio Picazo, and
petitioner Francisco de Guzman.
Agustin Mendegoria, the common-law husband of one of Lucia’s daughters, witnessed the
retrieval incident. He saw Ramon and petitioner bring out chairs, aparadors, mortars, a big
frying pan, a wooden bench, and a bed from Lucia’s house. Mendegoria immediately reported
the matter to Lucia, who then went to the respective houses of Ramon and petitioner. She
discovered that her properties were brought to Ramon’s house, save for the wooden bench
which was left just outside petitioner’s house. Lucia took pictures of her personal belongings
and then reported the matter to the police.5
Thereafter, Ramon and petitioner were charged with the crime of robbery with force upon
things in the following Information:
That on or about the first week of September, 1990, in the Municipality of Caba, Province of
La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused conspiring, confederating and mutually helping one another, and with intent of gain,
did then and there willfully, unlawfully and feloniously enter the residential house of the private
complainant, LUCIA VALDEZ, by hammering down the hollow-blocks of the house not
intended for entrance or egress, at the northeastern portion of said house, did, then and there
willfully, unlawfully and feloniously take, rob and carry away without the consent of the owner,
personal properties worth P20,000.00 to the damage and prejudice of the complainant. 6
Both petitioner and Ramon pleaded not guilty to the charge. In his defense, Ramon admitted
taking the properties but without intending to gain from his act. After the earthquake in 1990,
according to Ramon, he received instruction from his father to take the personal properties
belonging to his mother. He maintained that the properties taken were owned by his father
and mother, and not by Lucia.
On the other hand, petitioner denied taking the properties for gain. He claimed that he merely
helped Ramon bring out the properties belonging to the latter’s father from Lucia’s house. He
explained that since his house was relatively nearer to Lucia’s house, he acceded to Ramon’s
request that the wooden bench be temporarily placed in his house. But before Ramon could
transfer the bench to his own house, Lucia arrived and reported them to the police.
On September 15, 2000, the RTC rendered a Decision, the dispositive part of which reads:
In view thereof, the Court renders judgment:
1) [A]ccused Ramon Valdez is hereby acquitted of the crime charge[d] and is hereby directed
to repair the wall destroyed thereat or to pay the amount of [PhP] 10,000.00;
6

2) [A]ccused Francisco de Guzman is hereby convicted of the crime charged and is hereby
sentenced to suffer imprisonment of the indeterminate penalty of prision correccional in its
medium period to prision mayor in its minimum period of two (2) years, four (4) months and
one (1) day to eight (8) years and to pay the amount of [PhP] 3,700.00.
SO ORDERED.7
Petitioner appealed the case to the CA.
The Ruling of the CA
In a Decision dated August 27, 2004, the appellate court dismissed the appeal for lack of merit.
It held that Ramon’s acquittal cannot benefit petitioner because the defense of Ramon is
based on his personal relationship with the private complainant. Further, it ruled that the
prosecution established intent to gain when petitioner failed to satisfactorily explain how he
was able to gain possession of Lucia’s property.
In his Motion for Reconsideration, petitioner attached an affidavit executed by Lucia stating
that petitioner was wrongfully charged of the crime. But the CA gave no probative value to
Lucia’s affidavit and denied the motion for reconsideration.
The Issues
Hence, petitioner comes to this Court with the following issues for our consideration:
1. Whether or not the guilt of the petitioner in the crime charged was proved beyond
reasonable doubt;
2. Whether or not the Court of Appeals erred in not appreciating the Affidavit executed by the
private complainant although belated when it truly gives rise to a reasonable doubt as to the
guilt of the petitioner.8
In essence, the determinative issue revolves on the presence of the element of intent to gain.
The Ruling of the Court
The appeal has merit.
The instant petition involves a review of the factual findings of the trial and appellate courts.
As a general rule, only questions of law may be raised in a petition for review on certiorari with
this Court.9 And we have always held that the factual findings of the trial court, when affirmed
by the appellate court, are conclusive and binding on this Court; except when, as in this case,
the judgment assailed is based on a misapprehension of facts. 10
CRIMINAL LAW 1
DAY 5
To constitute robbery, the following elements must be established: (1) the subject is personal
property belonging to another; (2) there is unlawful taking of that property; (3) the taking is
with the intent to gain; and (4) there is violence against or intimidation of any person or use of
force upon things.11
In the present case, petitioner is imputed with intent to gain for his alleged failure to explain
why Lucia’s wooden bench was in his possession. Animus lucrandi or intent to gain is an
internal act which can be established through the overt acts of the offender. The unlawful
taking of another’s property gives rise to the presumption that the act was committed with
intent to gain. This presumption holds unless special circumstances reveal a different intent
on the part of the perpetrator.12 The term "gain" is not merely limited to pecuniary benefit but
also includes the benefit which in any other sense may be derived or expected from the act
which is performed. Thus, the mere use of the thing which was taken without the owner’s
consent constitutes gain.13
We are not convinced with moral certainty that petitioner had acted with intent to gain.
Contrary to the findings of the trial and appellate courts, the records bear out that it was Ramon,
under a claim of ownership, who had wanted the properties taken out from Lucia’s
house.14 And he had asked his neighbors, petitioner among them, to assist him in recovering
these properties.15 To be sure, petitioner, like the others who helped Ramon, was an innocent
person who merely acceded to a neighbor’s request.
The only fact that perhaps raises doubt on petitioner’s innocence was the presence of the
wooden bench in his house. Petitioner, however, sufficiently explained that owing to the
proximity of his house to that of Lucia’s, Ramon had asked that the bench be temporarily left
in petitioner’s house until he could transfer it. Unfortunately, before Ramon could remove it,
Lucia had already filed a complaint against them.16 Noticeably, petitioner did not falsely claim
ownership over the bench nor did he make any effort to conceal that the bench was in his
possession as it was placed outside his house. To our mind, his acts were consistent with his
assertion that he was merely helping Ramon, whom he honestly believed to be the owner,
take out the properties from Lucia’s home.
To stress, petitioner should not be held answerable for the act charged absent a felonious
intent. Actus non facit reum, nisi mens sit rea. A crime is not committed if the mind of the
person performing the act complained of is innocent.17
As regards the affidavit of desistance executed by Lucia, we could not fault the appellate court
for not giving it persuasive value, it being settled that affidavits of recantation made by a
witness after the conviction of the accused deserve only scant consideration. 18 Even without
the said affidavit, the circumstances of the case do not, however, confirm the culpability of
petitioner.
WHEREFORE, the petition is GRANTED. The assailed CA Decision dated August 27, 2004
and Resolution dated November 30, 2004 in CA-G.R. CR No. 25253 are REVERSED.
Petitioner Francisco de Guzman is ACQUITTED of the crime charged. No costs.
SO ORDERED.
7

Dolo (Freedom, Intelligence, Intent, or Mens Rea)
G.R. No. 120921 January 29, 1998
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
FELIPE BALLESTEROS, CESAR GALO and ALVIN
BULUSAN, accused-appellants.
ROMERO, J.:
This is an appeal from the decision of the Regional Trial Court of Bangui, Ilocos Norte, Branch
19, finding the accused guilty beyond reasonable doubt of murder, qualified by treachery, as
charged under Article 248 of the Revised Penal Code, as amended, to wit:
WHEREFORE, the Court finds the three accused guilty beyond
reasonable doubt of murder, qualified by treachery, as charged, defined
and penalized under Article 248 of the Revised Penal Code, as amended,
and applying Article 248 of the Revised Penal Code hereby sentences
them to reclusion perpetua, with all the accessory penalties provided by
law, and further sentencing them to pay jointly and solidarily —
1. The heirs of Jerry Agliam compensatory damages in the amount of
FIFTY THOUSAND PESOS (P50,000.00), moral damages in the amount
of TWENTY THOUSAND PESOS (P20,000.00), and actual damages in
the amount of THIRTY FIVE THOUSAND SEVEN HUNDRED FIFTY-
FIVE PESOS (P35,755.00), with interest;
2. The heirs of the late Eduardo Tolentino, Sr., compensatory damages
in the amount of FIFTY THOUSAND PESOS (P50,000.00), moral
damages in the amount of TWENTY THOUSAND PESOS (P20,000.00),
and actual damages in the total amount of SIXTY-ONE THOUSAND
SEVEN HUNDRED EIGHTY-FIVE PESOS (P61,785.00), with interest;
3. Carmelo Agliam, actual damages in the amount of TWO THOUSAND
AND THREE PESOS AND FORTY CENTAVOS (P2,003.40), and moral
damages in the amount of TEN THOUSAND PESOS (P10,000.00), with
interest;
4. Vidal Agliam Jr., Robert Cacal and Ronnel Tolentino, moral damages
in the amount of FIVE THOUSAND PESOS (P5,000.00) each, with
interest.
5. The costs.
The accused shall be credited in the service of their sentence the full time
during which they had undergone preventive imprisonment, if they
agreed voluntarily in writing to abide by the same disciplinary rules
imposed upon convicted prisoners, otherwise, they shall be credited in
CRIMINAL LAW 1
DAY 5
the service thereof with only four-fifths of the time during which they had
undergone preventive imprisonment.1
In the warm summer evening of May 28, 1991, Carmelo Agliam, his half-brother Eduardo
Tolentino, Ronnel Tolentino, Vidal Agliam, his brother Jerry Agliam, Robert Cacal, Raymundo
Bangi and Marcial Barid converged at a carinderia owned by Ronnel Tolentino at Ganayao,
Pasuquin, Ilocos Norte. They proceeded to the barangay hall at Carusipan to attend a dance.
The group did not tarry for long at the dance because they sensed some hostility from Cesar
Galo and his companions who were giving them dagger looks. In order to avoid trouble,
especially during the festivity, they decided to head for home instead of reacting to the
perceived provocation of Galo and his companions.
The group had barely left when, within fifty meters from the dance hall, their owner jeep was
fired upon from the rear. Vidal Agliam was able to jump out from the eastern side of the
"topdown" jeep and landed just beside it. He scurried to the side of the road and hid in the
ricefield. His younger brother Jerry also managed to jump out, but was shot in the stomach
and died.2 Carmelo Agliam, Robert Cacal and Ronnel Tolentino sustained injuries in the right
foot, back of the right thigh, and legs and thighs, respectively. 3 The stunned Eduardo
Tolentino was not even able to move from his seat and was hit with a bullet which punctured
his right kidney.4 He did not survive. The precipitate attack upon the jeep left two people dead
and four others injured.
Based upon the affidavits of Carmelo and Vidal Agliam, warrants for the arrest of Ballesteros,
Galo and Bulusan were issued. Charged with the crime of double murder with multiple
frustrated murder, an information was filed as follows:
That on or about (sic) May 28, 1991, in the Municipality of Pasuquin,
Ilocos Norte, Philippines and within the jurisdiction of the Honorable Court,
the abovenamed accused, nighttime purposely sought, with evident
premeditation and treachery, confederating and mutually helping one
anotlner, did then and there, with intent to kill, willfully, unlawfully and
feloniously attack and shot Eduardo Tolentino Sr., Jerry Agliam, Vidal
Agliam, Carmelo Agliam, Robert Cacal and Ronnel Tolentino, with the
use of firearms which caused the death of Eduardo Tolentino Sr. and
Jerry Agliam and thereby inflicting gunshot wounds to Vidal Agliam,
Carmelo Agliam, Robert Cacal and Ronnel Tolentino having performed
all the acts which would have produced the crime of Murder, but which
did not by reason of causes independent of the will of the defendant,
namely the able and timely medical assistance given to said Vidal Agliam,
Carmelo Agliam, Robert Cacal and Ronnel Tolentino which prevented
their death.
All pleaded not guilty. Paraffin tests conducted on Galo and Ballesteros produced positive
results. Bulusan was not tested for nitrates.
In his testimony, Galo claimed that he did not even talk to Bulusan or any of his companions
at the basketball court, as alleged by the complainants. Having been found with gunpowder
residue in his hands, Galo attempted to exculpate himself from the results by confessing that
he had been a cigarette smoker for the past ten years and had, in fact, just consumed eight
cigarette sticks prior to the test. He further asserted that paraffin tests are not infallible, and
8

that his hand may have been contaminated by a nitrogenous compound, the source of which
is urine. Lastly, he said that he was not even present at the crime scene when the firing
incident took place; hence, he could not have been one of those who strafed the jeep. 5
For his part, Ballesteros interposed the defense of alibi, narrating to the court that, on May 28,
1991, at around 7:00 o'clock in the evening, he went to a nearby store to purchase some
cigarettes. He returned home within thirty minutes and cleaned his garlic bulbs before retiring
at 9:00 o'clock. The next morning, he busied himself with some chores, which included
fertilizing his pepper plants with sulfate. He handled the fertilizers without gloves. To counter
the finding of traces of nitrates on his left hand, Ballesteros maintained that he uses his left
hand in lighting cigarettes, as it was very painful for him to use his right hand. He likewise
informed the trial court that he had no motive to kill the victims.6
Bulusan echoed the defense of alibi of Galo and Ballesteros, stating that he saw only Galo on
the evening of the dance but did not talk to him. He denied joining the two later that night
because after the dance, he went straight to the house of Michael Viloria, where he spent the
night he went to work at 7:00 o'clock in the morning of the following day. 7
The trial court found the three accused guilty beyond reasonable doubt of murder, qualified
by treachery, as charged, defined and penalized under Article 248 of the Revised Penal Code.
The accused now come to the High Court on appeal, praying that the decision of the trial court
be reversed and that a new one be entered acquitting them of the charges.
The principal question to be resolved has to do with the merits of the decision of the lower
court. Was it correct in finding accused-appellants guilty beyond reasonable doubt? We
answer in the affirmative.
Accused-appellants insist that the trial court erred in finding that Carmelo and Vidal Agliam
recognized them as the assailants. This claim is unmeritorious. In their testimonies, Carmelo
and Vidal Agliam both described the area to be well illumined by the moon. The shooting took
place on a small road in the mountainous terrains of Ilocos Norte, where the air is free from
darkening elements and turbidity. It being a summer evening, there could not have been any
fog to becloud the atmosphere and hamper the vision of the victims, which would have
prevented them from clearly seeing their assailants. They pinpointed the location of the
malefactors to be approximately three meters from where they stood. 8 Considering the
luminescence of the moon and the proximity between them, the victims could distinctly identify
their assailants. It must be noted that Carmelo was acquainted with Galo and his brother, a
butcher, since he used to deal with them in his business of buying and selling cattle.9 Bulusan
was a classmate of Vidal at Cadaratan School. Generally, people in rural communities know
each other both by face and name. 10Bulusan and Agliam were, not only townmates, but
former classmates as well. The constant interaction between them through the years would
necessarily lead to familiarity with each other such that, at the very least, one would have
been able to recognize the other easily.
That accused-appellants had no motive in perpetrating the offense is irrelevant. A distinction
is herein timely made between motive and intent. Motive is the moving power which impels
one to action for a definite result. Intent, on the other hand, is the purpose to use a particular
means to effect such result. 11Motive alone is not proof of a crime. 12 In order to tip the scales
CRIMINAL LAW 1
DAY 5
in its favor, intent and not motive must be established by the prosecution. Motive is hardly
ever an essential element of a crime. A man driven by extreme moral perversion may be led
to commit a crime, without a real motive but a just for the sake of committing it. 13 Along the
same line, a man who commits a crime with an apparent motive may produce different results,
for which he is punished. As held in a line of cases, the rule is well-settled that the prosecution
need not prove motive on the part of the accused when the latter has been positively identified
as the author of the crime. 14 Lack or absence of motive for committing the crime does not
preclude conviction thereof where there were reliable witnesses who fully and satisfactorily
identified the accused as the perpetrator of the felony. 15
Accused-appellant's attempt to offer wild excuses regarding the source of the gunpowder
traces found on their hands is futile. Experts confirm the possibility that cigarettes, fertilizers
and urine may leave traces of nitrates, but these are minimal and, unlike those found in
gunpowder, may be washed off with tap water.
The hackneyed defense of alibi interposed by accused-appellants must likewise fail. As
consistently enunciated by this Court, the established doctrine is that, for the defense of alibi
to prosper, the accused must prove, not only that he was at some other place at the time of
the commission of the crime, but also that it was physically impossible for him to be at the locus
delicti or within its immediate vicinity. 16 This accused-appellants failed to satisfactorily prove.
On the night of May 28, 1991, Galo and Bulusan attended the dance at the barangay hall.
After the dance, they went their separate ways but remained within the barangay. Galo
lingered in the premises. Bulusan slept over at the house of Michael Viloria, which was within
walking distance from the dance hall.
The defense of alibi must be established by positive, clear and satisfactorily evidence, the
reason being that it is easily manufactured and usually so unreliable that it can rarely be given
credence. 17 This is especially true in case of positive identification of the culprit by reliable
witnesses, 18 which renders their alibis worthless. 19 Positive identification prevails over
denials and alibis.20
Accused-appellants are under the common misconception that proof beyond reasonable
doubt requires total freedom from any quantum of doubt. This is not so. Under Section 2, Rule
133 of the Rules of Court,
(p)roof beyond reasonable doubt does not mean such a degree of proof
as, excluding possibility of error, produces absolute certainty. Moral
certainty only is required, or that degree of proof which produces
conviction in an unprejudiced mind.
Absolute certainty of guilt is not demanded by law to convict a person of a criminal charge.
The doubt to the benefit of which an accused is entitled in a criminal trial is a reasonable doubt,
not a whimsical or fanciful doubt based on imagined but wholly improbable possibilities and
unsupported by evidence. 21Reasonable doubt is that engendered by an investigation of the
whole proof and inability, after such investigation, to let the mind rest easy upon the certainty
of guilt. 22 A precise example would be the uncorroborated alibi of accused in the case at bar
where accused-appellants individually interposed the wavering defense of alibi. Galo failed to
elucidate on his whereabouts after the dance, whereas Bulusan claimed to have slept in the
house of one Michael Viloria. Ballesteros attested that he was not at the dance hall at all.
None of them, however, attempted to corroborate their alibi through the testimony of witnesses.
9

In fact, they never attempted to present as witnesses those who would have testified to having
seen them elsewhere on the night in question. Had they done so, the presentation of
corroborative testimony would have reenforced their defense of alibi. As held in People
vs. Ligotan, 23 an alibi must be supported by credible corroboration from disinterested
witnesses, and where such defense is not corroborated, it is fatal to the accused.
The Court correctly ruled in finding that the offense was qualified by treachery. Under
Paragraph 16, Article 14 of the Revised Penal Code, "(t)here is treachery when the offender
commits any of the crimes against the person employing means, methods or forms in the
execution thereof which tend directly and specially to insure its execution without risk to
himself arising from the defense which the offended party might make." The requisites of
treachery are twofold: (1) (t)hat at the time of the attack, the victim was not in a position to
defend himself ; and (2) that the offender consciously adopted the particular means, method
or form of attack employed by him. 24 As regards the second requisite, the accused must make
some preparation to kill his victim in such a manner at to insure the execution of the crime or
to make it impossible or hard for the person attacked to defend himself or retaliate. 25 There
must be evidence that such form of attack waspurposely adopted by the accused. 26 Here, it
is obvious that the accused-appellants had sufficient opportunity to reflect on their heinous
plan. The facts show that the attack was well-planned and not merely a result of the
impulsiveness of the offenders. Manifestations of their evil designs were already apparent as
early as the time of the dance. They were well-armed and approached the homebound victims,
totally unaware of their presence, from behind. There was no opportunity for the latter to
defend themselves, the attack being so sudden and Eduardo Tolentino was shot right where
he sat.
The trial court was also correct in the award of damages to the heirs of the victims. Damages
may be defined as the pecuniary compensation, recompense, or satisfaction for an injury
sustained, or as otherwise expressed, the pecuniary consequences which the law imposes
for the breach of some duty or the violation of some right. 27 Actual or compensatory damages
are those awarded in satisfaction of, or in recompense for, loss or injury sustained, 28 whereas
moral damages may be invoked when the complainant has experienced mental anguish,
serious anxiety, physical suffering, moral shock and so forth, and had furthermore shown that
these were the proximate result of the offender's wrongful act or omission. 29 In granting actual
or compensatory damages, the party making a claim for such must present the best evidence
available, viz., receipts, vouchers, and the like, 30 as corroborated by his testimony. 31 Here,
the claim for actual damages by the heirs of the victims is not controverted, the same having
been fully substantiated by receipts accumulated by them and presented to the
court. 32 Therefore, the award of actual damages is proper. However, the order granting
compensatory damages to the heirs of Jerry Agliam and Eduardo Tolentino Sr. must be
amended. Consistent with the policy of this Court, the amount of fifty thousand pesos
(P50,000.00) is given to the heirs of the victims by way of indemnity, and not as compensatory
damages. 33 As regards moral damages, the amount of psychological pain, damage and injury
caused to the heirs of the victims, although inestimable, 34 may be determined by the trial court
in its discretion. Hence, we see no reason to disturb its findings as to this matter.
WHEREFORE, premises considered, the decision appealed from is hereby AFFIRMED WITH
MODIFICATION. No pronouncement as to costs.
SO ORDERED.
CRIMINAL LAW 1
DAY 5
Culpa (Freedom, Intelligence, Negligence/Imprudence)
2.2. “HE WHO IS THE CAUSE OF THE CAUSE IS THE CAUSE OF THE
EVIL ACCUSED.” (Art. 4) (ex. If there is an intervening cause)
2.2.1. MISTAKE OF FACT (ignorantia facti excusat)
G.R. No. L-16486 March 22, 1921
THE UNITED STATES, plaintiff-appelle,
vs.
CALIXTO VALDEZ Y QUIRI, defendant-appellant.
Angel Roco for appellant.
Acting Attorney-General Feria for appellee.
STREET, J.:
The rather singular circumstances attending the commission of the offense of homicide which
is under discussion in the present appeal are these:
At about noon, on November 29, 1919, while the interisland steamer Vigan was anchored in
the Pasig River a short distance from the lighthouse and not far from where the river
debouches into the Manila Bay, a small boat was sent out to raise the anchor. The crew of
this boat consisted of the accused, Calixto Valdez y Quiri, and six others among whom was
the deceased, Venancio Gargantel. The accused was in charge of the men and stood at the
stern of the boat, acting as helmsman, while Venancio Gargantel was at the bow.
The work raising the anchor seems to have proceeded too slowly to satisfy the accused, and
he accordingly began to abuse the men with offensive epithets. Upon this Venancio Gargantel
remonstrated, saying that it would be better, and they would work better, if he would not insult
them. The accused took this remonstrance as a display of insubordination; and rising in rage
he moved towards Venancio, with a big knife in hand, threatening to stab him. At the instant
when the accused had attained to within a few feet of Venancio, the latter, evidently believing
himself in great and immediate peril, threw himself into the water and disappeared beneath
its surface to be seen no more.
The boat in which this incident took place was at the time possibly 30 or 40 yards from shore
and was distant, say, 10 paces from the Vigan. Two scows were moored to the shore, but
between these and the boat intervened a space which may be estimated at 18 or 20 yards. At
it was full midday, and there was nothing to obstruct the view of persons upon the scene, the
failure of Venancio Gargantel to rise to the surface conclusively shows that, owing to his
possible inability to swim or the strength of the current, he was borne down into the water and
was drowned.
10

Two witnesses who were on the boat state that, immediately after Venancio leaped into the
water, the accused told the remaining members of the crew to keep quiet or he would kill them.
For this reason they made no movement looking to rescue; but inasmuch as there witnesses
are sure that Venancio did not again come to the surface, efforts at rescue would have been
fruitless. The fact that the accused at his juncture threatened the crew with violence is,
therefore, of no moment except tho show the temporary excitement under which he was
laboring.
On the next day one of the friends of Venancio Gargantel posted himself near the lighthouse
to watch for the body, in the hope that it might come to the surface and could thus be recovered.
Though his friendly vigil lasted three days nothing came of it.
It may be added that Venancio has not returned to his lodging in Manila, where he lived as a
bachelor in the house of an acquaintance; and his personal belongings have been delivered
to a representative of his mother who lives in the Province of Iloilo. His friends and relatives,
it is needless to say, take it for granted that he is dead.
The circumstances narrated above are such in our opinion as to exclude all reasonable
possibility that Venancio Gargantel may have survived; and we think that the trial judge did
not err in holding that he is dead and that he came to his death by drowning under the
circumstances stated. The proof is direct that he never rose to the surface after jumping into
the river, so far as the observers could see; and this circumstance, coupled with the known
fact that human life must inevitably be extinguished by asphyxiation under water, is conclusive
of his death. The possibility that he might have swum ashore, after rising in a spot hidden from
the view of his companions, we consider too remote to be entertained for a moment.
As to the criminal responsibility of the accused for the death thus occasioned the likewise can
be no doubt; for it is obvious that the deceased, in throwing himself in the river, acted solely
in obedience to the instinct of self-preservation and was in no sense legally responsible for
his own death. As to him it was but the exercise of a choice between two evils, and any
reasonable person under the same circumstances might have done the same. As was once
said by a British court, "If a man creates in another man's mind an immediate sense of dander
which causes such person to try to escape, and in so doing he injuries himself, the person
who creates such a state of mind is responsible for the injuries which result." (Reg. vs. Halliday,
61 L. T. Rep. [N.S.], 701.
In this connection a pertinent decision from the Supreme Court of Spain, of July 13, 1882, is
cited in the brief of The Attorney-General, as follows: It appeared that upon a certain occasion
an individual, after having inflicted sundry injuries upon another with a cutting weapon, pointed
a shotgun at the injured person and to escape the discharge the latter had to jump into a river
where he perished by drowning. The medical authorities charged with conducting the autopsy
found that only one of the wounds caused by a cut could have resulted in the death of the
injured person, supposing that he had received no succour, and that by throwing himself in
the river he in fact died of asphyxia from submersion. Having been convicted as the author of
the homicide, the accused alleged upon appeal that he was only guilty of the offense of
inflicting serious physical injuries, or at most of frustrated homicide. The Supreme Court,
disallowing the appeal, enunciated the following doctrine: "That even though the death of the
injured person should not be considered as the exclusive and necessary effect of the very
grave wound which almost completely severed his axillary artery, occasioning a hemorrhage
impossible to stanch under the circumstances in which that person was placed, nevertheless
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as the persistence of the aggression of the accused compelled his adversary, in order to
escape the attack, to leap into the river, an act which the accused forcibly compelled the
injured person to do after having inflicted, among others, a mortal wound upon him and as the
aggressor by said attack manifested a determined resolution to cause the death of the
deceased, by depriving him of all possible help and putting him in the very serious situation
narrated in the decision appealed from, the trial court, in qualifying the act prosecuted as
consummated homicide, did not commit any error of law, as the death of the injured person
was due to the act of the accused." (II Hidalgo, Codigo Penal, p. 183.)
The accused must, therefore, be considered the responsible author of the death of Venancio
Gargantel, and he was properly convicted of the offense of homicide. The trial judge
appreciated as an attenuating circumstance the fact that the offender had no intention to
commit so great a wrong as that committed. (Par. 3, art. 9 Penal Code.) In accordance with
this finding the judge sentenced the accused to undergo imprisonment for twelve years and
one day, reclusion temporal, to suffer the corresponding accessories, to indemnify the family
of the deceased in the sum of P500, and to pay the costs. Said sentenced is in accordance
with law; and it being understood that the accessories appropriate to the case are those
specified in article 59 of the Penal Code, the same is affirmed, with costs against the appellant.
So ordered.
Mapa, C.J., Malcolm, Avanceña and Villamor, JJ., concur.
Separate Opinions
ARAULLO, J., dissenting:
I dissent from the majority opinion in this case.
The only fact that the evidence shows in that Venancio Gargantel, one of those who were in
a boat of the steamer Vigan subject to the orders of the accused Calixto Valdez and who at
the time was engaged in the work of raising the anchor of that vessel, which was then lying at
the Pasig River, a short distance from the lighthouse and not far from its mouth at the Manila
Bay, upon seeing that the accused was approaching him, armed with a big knife, and in the
attitude of attacking him, threw himself into the water and disappeared from the surface and
had not been seen again. This event took place at noon on November 29, 1919, the boat
being then about 30 or 40 yards from land and about 10 steps from the Vigan, there being two
lighters moored to the shore and at a distance of about 18 or 20 yards from the boat. All of
these facts are stated in the decision itself.
The original information in the present case, charging Calixto Valdez y Quiri with the crime of
homicide and alleging that as a result of his having thrown himself into the river under the
circumstances mentioned, Venancio Gargantel was drowned, was presented on December 8,
1919, that is, nine days afterwards.
There is no evidence whatever that the corpse of Venancio Gargantel had been found or,
what is the same thing, that he had died. From November 28, the day when the event occurred,
until December 8, when the information was filed, it cannot in any manner be maintained that
the necessary time had passed for us to properly conclude, as is alleged in the information,
that said Gargantel had died by drowning, as a consequence of his having thrown himself into
11

the water upon seeing himself threatened and attacked by the accused. Neither does it appear
in the evidence that all the precaution necessary for us to assure ourselves, as a sure and
proven fact, that Venancio Gargantel then died by drowning, were taken; nor is there any
evidence that it would have been impossible for him, by swimming or by any other means to
rise to the surface at a place other than the Pasig River or that where the boat was, from which
he threw himself into the river, and in that manner save himself from death.
From the evidence of the witnesses for the prosecution which is the only evidence in the record,
for the accused di not take the stand, it only appears that Venancio Gargantel, after having
jumped from the boat, did not rise again to the surface. Such was the statement of two of
those witnesses who were members of the boat's crew at the time. Another witness also
declared that Gargantel was afterwards not again seen at the house where he lived in this city,
No. 711 San Nicolas Street, where he kept his trunks and some effects, a fact which caused
his mother, who lived in the municipality of Guimbal, in the Province of Iloilo, upon being
informed of it and upon the failure of Venancio to appear in said place, to give special power
on the 28th of that month of December, that is, one month afterwards, to a student, Ignacio
Garzon, to get the trunks and effects of Venancio from said house. Sid Garzon himself testified,
upon being asked whether Venancio Gargantel had returned to the house of his parents since
November 29, 1919, that he had no information about it, and another witness, Pedro Garcia,
of the prosecution, stated that he had probably died, because he had not seen Venancio
Gargantel.
Therefore, in short, the only fact proved is that since Venancio Gargantel threw himself into
the river, upon being threatened with a knife by the accused, his whereabouts has remained
unknown even at the moment of rendering judgment in this case, or, February 9, 1920, that
is, two and one-half months after the occurrence of the event.
It is stated in the decision that the friend and parents of Gargantel give him up for dead. There
is nevertheless in the record no statement of any parent of Gargantel to that effect; for his
mother Maria Gatpolitan, a resident of the municipality of Guimbal, merely stated in the power
of attorney executed in favor of Ignacio Garzon that the latter should take steps in order that
the city fiscal might investigate the death of her son which, according to information, was
caused by another members, of the crew of the steamer Vigan; and none of his friends, that
is, none of the two members of the party in the boat at that time and of the crew of the
steamer Vigan, nor Maximo Gumbog, the owner of the house in which Gargantel lived in this
city, nor Pedro Garcia, another member of the crew of that steamer, and finally, nor Ignacio
Garzon himself has stated that he gave up Gargantel for dead, for the simple reason that this
was not possible, for they only knew that he did not again rise to the surface and was not seen
again after having thrown himself into the river from the boat.
For this reason it is stated in the decision that the circumstances therein stated are such that
they exclude all reasonable possibility that Venancio Gargantel could have survived and that
the circumstance that never rose to the surface after having jumped into the river, as
witnessed by the persons present, together with the admitted fact that human life is
necessarily asphyxiated under the water, is conclusive that he died. Then, there is nothing
more than a deduction that Gargantel had died based upon those facts and circumstances.
In my opinion this is not sufficient to convict the accused as guilty of homicide, because there
is the possibility that Gargantel had risen to the surface at some place away from the where
he threw himself into the river and had embarked on some other vessel in the same river or
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out of it in the bay and had gone abroad, or to some province of these Islands and is found in
some municipality thereof, cannot be denied. And this is very probable inasmuch as it does
not appear in the record that the necessary investigation has been made in order to
determined even with only some measure of certainty, not to say beyond all reasonable doubt,
that it was and is impossible to find said person or determined his whereabouts.
Furthermore, there is not even a presumption juris tantum that he had died, for in order that
this presumption may exist, according to section 334 of the Code of Civil Procedure, it is
necessary that no information about him should have been received for seven years from his
disappearance upon his throwing himself into the river, which occurred on November 29, 1919,
that is, only about one year and four months ago. And if, in order that a finding of a civil
character in favor of or against some person, may be made, by virtue of that presumption, it
is necessary that seven years should have elapsed without any notice being received of the
person whose whereabouts is unknown, it is not just, reasonable, or legal that the period of
one year and four months from his disappearance or since Venancio Gargantel threw himself
into the water should suffice for us to impose upon the accused Calixto Valdez such a grave
penalty as that of twelve years and one day of reclusion temporal, merely assuming without
declaring it, as a proven fact, that Gargantel has died and at the same time finding said
accused to be the author of that death.
Lastly, the decision of the English Supreme Court or that of the Spanish Supreme Court dated
July 13, 1882, cited by the majority opinion is not applicable. The first, is not applicable
because in the present case it is not proved, beyond reasonable doubt, that some damage
resulted to Gargantel, just as it cannot be considered as proved that he had died, or that he
had been injured or that he had suffered some injury after having thrown himself into the river
as a result of the threat of the accused. The second is not applicable because the decision of
the Supreme Court of Spain refers to a case, in which the injured party had already been
wounded with a cutting instrument by the accused before throwing himself into the river upon
the latter aiming at him with his gun, it having afterwards been proved upon his being taken
out of the river that the wound inflicted upon him by the accused was mortal; and,
consequently, it was declared by said court that, even if the death of the deceased be
considered as not having resulted exclusively and necessarily from that most grave wound,
the persistence of the aggression of the accused compelled his adversary to escape it and
threw himself into the river, by depriving him of all possible help and placing him in the serious
situation related in the judgment appealed from -a case which, as is seen, is very different
from that which took place in the present case.
For the reasons above stated, I am of the opinion, with due respect to the opinion of the
majority, that the accused Calixto Valdez y Quiri cannot be found guilty of homicide and should
be acquitted.
2.2.1. MISTAKE OF FACT (ignorantia facti excusat)
G.R. No. L-5272 March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
12
 CRIMINAL LAW 1
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Gibb & Gale, for appellant. cook; and as defendant alleges, it was because of these repeated robberies he kept a knife
Attorney-General Villamor, for appellee. under his pillow for his personal protection.

CARSON, J.: The deceased and the accused, who roomed together and who appear to have on friendly
and amicable terms prior to the fatal incident, had an understanding that when either returned
at night, he should knock at the door and acquiant his companion with his identity. Pascual
The evidence as to many of the essential and vital facts in this case is limited to the testimony
had left the house early in the evening and gone for a walk with his friends, Celestino
of the accused himself, because from the very nature of these facts and from the
Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28, the nearest
circumstances surrounding the incident upon which these proceedings rest, no other evidence
house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino
as to these facts was available either to the prosecution or to the defense. We think, however,
and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few
that, giving the accused the benefit of the doubt as to the weight of the evidence touching
moments after the party separated, Celestino and Mariano heard cries for assistance and
those details of the incident as to which there can be said to be any doubt, the following
upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the
statement of the material facts disclose by the record may be taken to be substantially correct:
stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy,
who immediately went to the aid of the wounded man.
The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc
Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed
The defendant then and there admitted that he had stabbed his roommate, but said that he
as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some
did it under the impression that Pascual was "a ladron" because he forced open the door of
40 meters from the nearest building, and in August, 19087, was occupied solely as an officers'
their sleeping room, despite defendant's warnings.
mess or club. No one slept in the house except the two servants, who jointly occupied a small
room toward the rear of the building, the door of which opened upon a narrow porch running
along the side of the building, by which communication was had with the other part of the No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself,
house. This porch was covered by a heavy growth of vines for its entire length and height. unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate,
The door of the room was not furnished with a permanent bolt or lock, and occupants, as a and sought to frightened him by forcing his way into the room, refusing to give his name or
measure of security, had attached a small hook or catch on the inside of the door, and were say who he was, in order to make Ah Chong believe that he was being attacked by a robber.
in the habit of reinforcing this somewhat insecure means of fastening the door by placing
against it a chair. In the room there was but one small window, which, like the door, opened
Defendant was placed under arrest forthwith, and Pascual was conveyed to the military
on the porch. Aside from the door and window, there were no other openings of any kind in
hospital, where he died from the effects of the wound on the following day.
the room.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the
court of simple homicide, with extenuating circumstances, and sentenced to six years and one
night, was suddenly awakened by some trying to force open the door of the room. He sat up
day presidio mayor, the minimum penalty prescribed by law.
in bed and called out twice, "Who is there?" He heard no answer and was convinced by the
noise at the door that it was being pushed open by someone bent upon forcing his way into
the room. Due to the heavy growth of vines along the front of the porch, the room was very At the trial in the court below the defendant admitted that he killed his roommate, Pascual
dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in
and called out. "If you enter the room, I will kill you." At that moment he was struck just above the exercise of his lawful right of self-defense.
the knee by the edge of the chair which had been placed against the door. In the darkness
and confusion the defendant thought that the blow had been inflicted by the person who had
forced the door open, whom he supposed to be a burglar, though in the light of after events, Article 8 of the Penal Code provides that —
it is probable that the chair was merely thrown back into the room by the sudden opening of
the door against which it rested. Seizing a common kitchen knife which he kept under his The following are not delinquent and are therefore exempt from criminal liability:
pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his
roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a
desperately wounded condition, followed by the defendant, who immediately recognized him xxx xxx xxx
in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in
the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's 4 He who acts in defense of his person or rights, provided there are the following
wounds. attendant circumstances:

There had been several robberies in Fort McKinley not long prior to the date of the incident (1) Illegal aggression.
just described, one of which took place in a house in which the defendant was employed as

13

(2) Reasonable necessity of the means employed to prevent or repel it.
(3) Lack of sufficient provocation on the part of the person defending himself.
Under these provisions we think that there can be no doubt that defendant would be entitle to
complete exception from criminal liability for the death of the victim of his fatal blow, if the
intruder who forced open the door of his room had been in fact a dangerous thief or "ladron,"
as the defendant believed him to be. No one, under such circumstances, would doubt the right
of the defendant to resist and repel such an intrusion, and the thief having forced open the
door notwithstanding defendant's thrice-repeated warning to desist, and his threat that he
would kill the intruder if he persisted in his attempt, it will not be questioned that in the darkness
of the night, in a small room, with no means of escape, with the thief advancing upon him
despite his warnings defendant would have been wholly justified in using any available
weapon to defend himself from such an assault, and in striking promptly, without waiting for
the thief to discover his whereabouts and deliver the first blow.
But the evidence clearly discloses that the intruder was not a thief or a "ladron." That neither
the defendant nor his property nor any of the property under his charge was in real danger at
the time when he struck the fatal blow. That there was no such "unlawful aggression" on the
part of a thief or "ladron" as defendant believed he was repelling and resisting, and that there
was no real "necessity" for the use of the knife to defend his person or his property or the
property under his charge.
The question then squarely presents it self, whether in this jurisdiction one can be held
criminally responsible who, by reason of a mistake as to the facts, does an act for which he
would be exempt from criminal liability if the facts were as he supposed them to be, but which
would constitute the crime of homicide or assassination if the actor had known the true state
of the facts at the time when he committed the act. To this question we think there can be but
one answer, and we hold that under such circumstances there is no criminal liability, provided
always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.
In broader terms, ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient
to negative a particular intent which under the law is a necessary ingredient of the offense
charged (e.g., in larcerny, animus furendi; in murder, malice; in crimes intent) "cancels the
presumption of intent," and works an acquittal; except in those cases where the circumstances
demand a conviction under the penal provisions touching criminal negligence; and in cases
where, under the provisions of article 1 of the Penal Code one voluntarily committing a crime
or misdeamor incurs criminal liability for any wrongful act committed by him, even though it be
different from that which he intended to commit. (Wharton's Criminal Law, sec. 87 and cases
cited; McClain's Crim. Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240;
Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y., 509; Isham vs. State, 38
Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of discussion, and the only question worthy
of consideration is whether malice or criminal intent is an essential element or ingredient of
the crimes of homicide and assassination as defined and penalized in the Penal Code. It has
been said that since the definitions there given of these as well as most other crimes and
offense therein defined, do not specifically and expressly declare that the acts constituting the
crime or offense must be committed with malice or with criminal intent in order that the actor
may be held criminally liable, the commission of the acts set out in the various definitions
CRIMINAL LAW 1
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subjects the actor to the penalties described therein, unless it appears that he is exempted
from liability under one or other of the express provisions of article 8 of the code, which treats
of exemption. But while it is true that contrary to the general rule of legislative enactment in
the United States, the definitions of crimes and offenses as set out in the Penal Code rarely
contain provisions expressly declaring that malice or criminal intent is an essential ingredient
of the crime, nevertheless, the general provisions of article 1 of the code clearly indicate that
malice, or criminal intent in some form, is an essential requisite of all crimes and offense
therein defined, in the absence of express provisions modifying the general rule, such as are
those touching liability resulting from acts negligently or imprudently committed, and acts done
by one voluntarily committing a crime or misdemeanor, where the act committed is different
from that which he intended to commit. And it is to be observed that even these exceptions
are more apparent than real, for "There is little distinction, except in degree, between a will to
do a wrongful thing and indifference whether it is done or not. Therefore carelessness is
criminal, and within limits supplies the place of the affirmative criminal intent" (Bishop's New
Criminal Law, vol. 1, s. 313); and, again, "There is so little difference between a disposition to
do a great harm and a disposition to do harm that one of them may very well be looked upon
as the measure of the other. Since, therefore, the guilt of a crime consists in the disposition to
do harm, which the criminal shows by committing it, and since this disposition is greater or
less in proportion to the harm which is done by the crime, the consequence is that the guilt of
the crime follows the same proportion; it is greater or less according as the crime in its own
nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been otherwise stated,
the thing done, having proceeded from a corrupt mid, is to be viewed the same whether the
corruption was of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
Acts and omissions punished by law are always presumed to be voluntarily unless
the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur criminal
liability, even though the wrongful act committed be different from that which he had
intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word "voluntary" as
used in this article, say that a voluntary act is a free, intelligent, and intentional act, and roundly
asserts that without intention (intention to do wrong or criminal intention) there can be no crime;
and that the word "voluntary" implies and includes the words "con malicia," which were
expressly set out in the definition of the word "crime" in the code of 1822, but omitted from the
code of 1870, because, as Pacheco insists, their use in the former code was redundant, being
implied and included in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can only be said to
exempt from criminal responsibility when the act which was actually intended to be done was
in itself a lawful one, and in the absence of negligence or imprudence, nevertheless admits
and recognizes in his discussion of the provisions of this article of the code that in general
without intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown above,
the exceptions insisted upon by Viada are more apparent than real.
14

Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that where there
is no intention there is no crime . . . in order to affirm, without fear of mistake, that
under our code there can be no crime if there is no act, an act which must fall within
the sphere of ethics if there is no moral injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain, as, for example
in its sentence of May 31, 1882, in which it made use of the following language:
It is necessary that this act, in order to constitute a crime, involve all the malice
which is supposed from the operation of the will and an intent to cause the injury
which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering that, whatever
may be the civil effects of the inscription of his three sons, made by the appellant in the civil
registry and in the parochial church, there can be no crime because of the lack of the
necessary element or criminal intention, which characterizes every action or ommission
punished by law; nor is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of the following
language:
. . . Considering that the moral element of the crime, that is, intent or malice or their
absence in the commission of an act defined and punished by law as criminal, is
not a necessary question of fact submitted to the exclusive judgment and decision
of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an essential element
of the various crimes and misdemeanors therein defined becomes clear also from an
examination of the provisions of article 568, which are as follows:
He who shall execute through reckless negligence an act that, if done with malice,
would constitute a grave crime, shall be punished with the penalty of arresto
mayor in its maximum degree, to prision correccional in its minimum degrees if it
shall constitute a less grave crime.
He who in violation of the regulations shall commit a crime through simple
imprudence or negligence shall incur the penalty of arresto mayor in its medium and
maximum degrees.
In the application of these penalties the courts shall proceed according to their
discretion, without being subject to the rules prescribed in article 81.
The provisions of this article shall not be applicable if the penalty prescribed for the
crime is equal to or less than those contained in the first paragraph thereof, in which
CRIMINAL LAW 1
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case the courts shall apply the next one thereto in the degree which they may
consider proper.
The word "malice" in this article is manifestly substantially equivalent to the words "criminal
intent," and the direct inference from its provisions is that the commission of the acts
contemplated therein, in the absence of malice (criminal intent), negligence, and imprudence,
does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in
meaning the word "willful" as used in English and American statute to designate a form of
criminal intent. It has been said that while the word "willful" sometimes means little more than
intentionally or designedly, yet it is more frequently understood to extent a little further and
approximate the idea of the milder kind of legal malice; that is, it signifies an evil intent without
justifiable excuse. In one case it was said to mean, as employed in a statute in contemplation,
"wantonly" or "causelessly;" in another, "without reasonable grounds to believe the thing
lawful." And Shaw, C. J., once said that ordinarily in a statute it means "not merely `voluntarily'
but with a bad purpose; in other words, corruptly." In English and the American statutes
defining crimes "malice," "malicious," "maliciously," and "malice aforethought" are words
indicating intent, more purely technical than "willful" or willfully," but "the difference between
them is not great;" the word "malice" not often being understood to require general
malevolence toward a particular individual, and signifying rather the intent from our legal
justification. (Bishop's New Criminal Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition in the definition
of a crime that it be committed "voluntarily," willfully," "maliciously" "with malice aforethought,"
or in one of the various modes generally construed to imply a criminal intent, we think that
reasoning from general principles it will always be found that with the rare exceptions
hereinafter mentioned, to constitute a crime evil intent must combine with an act. Mr. Bishop,
who supports his position with numerous citations from the decided cases, thus forcely
present this doctrine:
In no one thing does criminal jurisprudence differ more from civil than in the rule as
to the intent. In controversies between private parties the quo animo with which a
thing was done is sometimes important, not always; but crime proceeds only from
a criminal mind. So that —
There can be no crime, large or small, without an evil mind. In other words,
punishment is the sentence of wickedness, without which it can not be. And neither
in philosophical speculation nor in religious or mortal sentiment would any people
in any age allow that a man should be deemed guilty unless his mind was so. It is
therefore a principle of our legal system, as probably it is of every other, that the
essence of an offense is the wrongful intent, without which it can not exists. We find
this doctrine confirmed by —
Legal maxims. — The ancient wisdom of the law, equally with the modern, is distinct
on this subject. It consequently has supplied to us such maxims as Actus non facit
reum nisi mens sit rea, "the act itself does not make man guilty unless his intention
were so;" Actus me incito factus non est meus actus, "an act done by me against
my will is not my act;" and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also —
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Moral science and moral sentiment teach the same thing. "By reference to the
intention, we inculpate or exculpate others or ourselves without any respect to the
happiness or misery actually produced. Let the result of an action be what it may,
we hold a man guilty simply on the ground of intention; or, on the dame ground, we
hold him innocent." The calm judgment of mankind keeps this doctrine among its
jewels. In times of excitement, when vengeance takes the place of justice, every
guard around the innocent is cast down. But with the return of reason comes the
public voice that where the mind is pure, he who differs in act from his neighbors
does not offend. And —
In the spontaneous judgment which springs from the nature given by God to man,
no one deems another to deserve punishment for what he did from an upright mind,
destitute of every form of evil. And whenever a person is made to suffer a
punishment which the community deems not his due, so far from its placing an evil
mark upon him, it elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification of what has the
appearance of wrong, with the utmost confidence that the plea, if its truth is credited,
will be accepted as good. Now these facts are only the voice of nature uttering one
of her immutable truths. It is, then, the doctrine of the law, superior to all other
doctrines, because first in nature from which the law itself proceeds, that no man is
to be punished as a criminal unless his intent is wrong. (Bishop's New Criminal Law,
vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all things," an apparent departure from this
doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris
non excusat ("Ignorance of the law excuses no man"), without which justice could not be
administered in our tribunals; and compelled also by the same doctrine of necessity, the courts
have recognized the power of the legislature to forbid, in a limited class of cases, the doing of
certain acts, and to make their commission criminal without regard to the intent of the doer.
Without discussing these exceptional cases at length, it is sufficient here to say that the courts
have always held that unless the intention of the lawmaker to make the commission of certain
acts criminal without regard to the intent of the doer is clear and beyond question the statute
will not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77); and the rule
that ignorance of the law excuses no man has been said not to be a real departure from the
law's fundamental principle that crime exists only where the mind is at fault, because "the evil
purpose need not be to break the law, and if suffices if it is simply to do the thing which the
law in fact forbids." (Bishop's New Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing necessity therefore,
requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of
abstract justice. On the contrary, the maxim here is Ignorantia facti excusat ("Ignorance or
mistake in point of fact is, in all cases of supposed offense, a sufficient excuse"). (Brown's
Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in every crime, any such mistake of fact
as shows the act committed to have proceeded from no sort of evil in the mind necessarily
relieves the actor from criminal liability provided always there is no fault or negligence on his
part; and as laid down by Baron Parke, "The guilt of the accused must depend on the
circumstances as they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs. Anderson,
44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46 Barb.,
625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex.
CRIMINAL LAW 1
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Ap., 387.) That is to say, the question as to whether he honestly, in good faith, and without
fault or negligence fell into the mistake is to be determined by the circumstances as they
appeared to him at the time when the mistake was made, and the effect which the surrounding
circumstances might reasonably be expected to have on his mind, in forming the intent,
criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause to
believe the existence of facts which will justify a killing — or, in terms more nicely in
accord with the principles on which the rule is founded, if without fault or
carelessness he does believe them — he is legally guiltless of the homicide; though
he mistook the facts, and so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the right of self-defense and the
not quite harmonious authorities, it is the doctrine of reason and sufficiently
sustained in adjudication, that notwithstanding some decisions apparently adverse,
whenever a man undertakes self-defense, he is justified in acting on the facts as
they appear to him. If, without fault or carelessness, he is misled concerning them,
and defends himself correctly according to what he thus supposes the facts to be
the law will not punish him though they are in truth otherwise, and he was really no
occassion for the extreme measures. (Bishop's New Criminal Law, sec. 305, and
large array of cases there cited.)
The common illustration in the American and English textbooks of the application of this rule
is the case where a man, masked and disguised as a footpad, at night and on a lonely road,
"holds up" his friends in a spirit of mischief, and with leveled pistol demands his money or his
life, but is killed by his friend under the mistaken belief that the attack is a real one, that the
pistol leveled at his head is loaded, and that his life and property are in imminent danger at
the hands of the aggressor. No one will doubt that if the facts were such as the slayer believed
them to be he would be innocent of the commission of any crime and wholly exempt from
criminal liability, although if he knew the real state of the facts when he took the life of his
friend he would undoubtedly be guilty of the crime of homicide or assassination. Under such
circumstances, proof of his innocent mistake of the facts overcomes the presumption of malice
or criminal intent, and (since malice or criminal intent is a necessary ingredient of the "act
punished by law" in cases of homicide or assassination) overcomes at the same time the
presumption established in article 1 of the code, that the "act punished by law" was committed
"voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person slain had a
felonious design against him, and under that supposition killed him, although it
should afterwards appear that there was no such design, it will not be murder, but
it will be either manslaughter or excusable homicide, according to the degree of
caution used and the probable grounds of such belief. (Charge to the grand jury in
Selfridge's case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand, and using violent menaces against his
life as he advances. Having approached near enough in the same attitude, A, who
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DAY 5
has a club in his hand, strikes B over the head before or at the instant the pistol is apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of
discharged; and of the wound B dies. It turns out the pistol was loaded with powder supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
only, and that the real design of B was only to terrify A. Will any reasonable man
say that A is more criminal that he would have been if there had been a bullet in the
QUESTION XIX. A person returning, at night, to his house, which was situated in a
pistol? Those who hold such doctrine must require that a man so attacked must,
retired part of the city, upon arriving at a point where there was no light, heard the
before he strikes the assailant, stop and ascertain how the pistol is loaded — a
voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you
doctrine which would entirely take away the essential right of self-defense. And
money!" because of which, and almost at the same money, he fired two shots from
when it is considered that the jury who try the cause, and not the party killing, are
his pistol, distinguishing immediately the voice of one of his friends (who had before
to judge of the reasonable grounds of his apprehension, no danger can be
simulated a different voice) saying, "Oh! they have killed me," and hastening to his
supposed to flow from this principle. (Lloyd's Rep., p. 160.)
assistance, finding the body lying upon the ground, he cried, "Miguel, Miguel, speak,
for God's sake, or I am ruined," realizing that he had been the victim of a joke, and
To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few not receiving a reply, and observing that his friend was a corpse, he retired from the
of which are here set out in full because the facts are somewhat analogous to those in the place. Shall he be declared exempt in toto from responsibility as the author of this
case at bar. homicide, as having acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of the Audiencia of Malaga
did not so find, but only found in favor of the accused two of the requisites of said
QUESTION III. When it is shown that the accused was sitting at his hearth, at night,
article, but not that of the reasonableness of the means employed to repel the attack,
in company only of his wife, without other light than reflected from the fire, and that
and, therefore, condemned the accused to eight years and one day of prison mayor,
the man with his back to the door was attending to the fire, there suddenly entered
etc. The supreme court acquitted the accused on his appeal from this sentence,
a person whom he did not see or know, who struck him one or two blows, producing
holding that the accused was acting under a justifiable and excusable mistake of
a contusion on the shoulder, because of which he turned, seized the person and
fact as to the identity of the person calling to him, and that under the circumstances,
took from his the stick with which he had undoubtedly been struck, and gave the
the darkness and remoteness, etc., the means employed were rational and the
unknown person a blow, knocking him to the floor, and afterwards striking him
shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p.
another blow on the head, leaving the unknown lying on the floor, and left the house.
136.)
It turned out the unknown person was his father-in-law, to whom he rendered
assistance as soon as he learned his identity, and who died in about six days in
consequence of cerebral congestion resulting from the blow. The accused, who QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night,
confessed the facts, had always sustained pleasant relations with his father-in-law, by a large stone thrown against his window — at this, he puts his head out of the
whom he visited during his sickness, demonstrating great grief over the occurrence. window and inquires what is wanted, and is answered "the delivery of all of his
Shall he be considered free from criminal responsibility, as having acted in self- money, otherwise his house would be burned" — because of which, and observing
defense, with all the circumstances related in paragraph 4, article 8, of the Penal in an alley adjacent to the mill four individuals, one of whom addressed him with
Code? The criminal branch of the Audiencia of Valladolid found that he was an blasphemy, he fired his pistol at one the men, who, on the next morning was found
illegal aggressor, without sufficient provocation, and that there did not exists rational dead on the same spot. Shall this man be declared exempt from criminal
necessity for the employment of the force used, and in accordance with articles 419 responsibility as having acted in just self-defense with all of the requisites of law?
and 87 of the Penal Code condemned him to twenty months of imprisonment, with The criminal branch of the requisites of law? The criminal branch of the Audiencia of
accessory penalty and costs. Upon appeal by the accused, he was acquitted by the Zaragoza finds that there existed in favor of the accused a majority of the requisites
supreme court, under the following sentence: "Considering, from the facts found by to exempt him from criminal responsibility, but not that of reasonable necessity for
the sentence to have been proven, that the accused was surprised from behind, at the means, employed, and condemned the accused to twelve months of prision
night, in his house beside his wife who was nursing her child, was attacked, struck, correctional for the homicide committed. Upon appeal, the supreme court acquitted
and beaten, without being able to distinguish with which they might have executed the condemned, finding that the accused, in firing at the malefactors, who attack his
their criminal intent, because of the there was no other than fire light in the room, mill at night in a remote spot by threatening robbery and incendiarism, was acting
and considering that in such a situation and when the acts executed demonstrated in just self-defense of his person, property, and family. (Sentence of May 23, 1877).
that they might endanger his existence, and possibly that of his wife and child, more (I Viada, p. 128.)
especially because his assailant was unknown, he should have defended himself,
and in doing so with the same stick with which he was attacked, he did not exceed
A careful examination of the facts as disclosed in the case at bar convinces us that the
the limits of self-defense, nor did he use means which were not rationally necessary,
defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the
particularly because the instrument with which he killed was the one which he took
intruder who forced open the door of his sleeping room was a thief, from whose assault he
from his assailant, and was capable of producing death, and in the darkness of the
was in imminent peril, both of his life and of his property and of the property committed to his
house and the consteration which naturally resulted from such strong aggression,
charge; that in view of all the circumstances, as they must have presented themselves to the
it was not given him to known or distinguish whether there was one or more
defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief
assailants, nor the arms which they might bear, not that which they might
that he was doing no more than exercising his legitimate right of self-defense; that had the
accomplish, and considering that the lower court did not find from the accepted facts
facts been as he believed them to be he would have been wholly exempt from criminal liability
that there existed rational necessity for the means employed, and that it did not

17

on account of his act; and that he can not be said to have been guilty of negligence or
recklessness or even carelessness in falling into his mistake as to the facts, or in the means
adopted by him to defend himself from the imminent danger which he believe threatened his
person and his property and the property under his charge.
The judgment of conviction and the sentence imposed by the trial court should be reversed,
and the defendant acquitted of the crime with which he is charged and his bail bond
exonerated, with the costs of both instance de oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.
Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the court, believes that, according
to the merits of the case, the crime of homicide by reckless negligence, defined and punishes
in article 568 of the Penal Code, was committed, inasmuch as the victim was wilfully
(voluntariomente) killed, and while the act was done without malice or criminal intent it was,
however, executed with real negligence, for the acts committed by the deceased could not
warrant the aggression by the defendant under the erroneous belief on the part of the accused
that the person who assaulted him was a malefactor; the defendant therefore incurred
responsibility in attacking with a knife the person who was accustomed to enter said room,
without any justifiable motive.
By reason of the nature of the crime committed, in the opinion of the undersigned the accused
should be sentenced to the penalty of one year and one month of prision correctional, to suffer
the accessory penalties provided in article 61, and to pay an indemnify of P1,000 to the heirs
of the deceased, with the costs of both instances, thereby reversing the judgment appealed
from.
2.2.1. MISTAKE OF FACT (ignorantia facti excusat)
G.R. No. L-24978 March 27, 1926
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FERNANDO DE FERNANDO, defendant-appellant.
W. A. Armstrong for appellant.
Attorney-General Jaranilla for appellee.
VILLA-REAL, J.:
CRIMINAL LAW 1
DAY 5
This appeal has been taken by the defendant Fernando de Fernando from the judgment of
the Court of First Instance of Zamboanga, in which he was held guilty of the crime of murder
and sentenced to suffer the penalty of twenty years cadena temporal, to indemnify the heirs
of the deceased Buenventura Paulino in the sum of P1,000 and to pay the costs, by virtue of
a complaint filed by the fiscal charging with the said crime.
As a basis for his appeal the accused assigns the following errors as committed by the trial
court: (1) in holding that the acts committed by the accused constituted the crime for murder;
(2) in not holding that the accused was exempt from criminal liability and in not acquitting him.
At the trial the following facts were proven beyond a reasonable doubt: Before the day of the
crime several Moro prisoners had escaped from the Penal Colony of San Ramon, Zamboanga.
The residents of the barrio of Municahan of the municipality of Zamboanga were alarmed by
the presence of three suspicious looking persons who were prowling around the place. The
accused Fernando de Fernando who, at that time, was a municipal policeman, when passing
in front of the house of one Remigio Delgado, was called by the latter's daughter Paciencia
Delgado, who stated that her father wished to see him. When the policeman came up the
house Remigio Delgado informed him that three unknown and suspicious looking persons,
dressed in blue, prowling around his house. The accused remained in the said house talking
with Paciencia Delgado, both being seated on a bench near the window. While they were thus
talking, at about 7 o'clock at night, there appeared in the dark, at about 4 meters from the
stairs, a person dressed in dark clothes, calling "Nong Miong." At the time the accused nor
Paciencia Delgado knew who was thus calling. The accused inquired what he wanted but
instead of answering he continued advancing with bolo in hand. Upon seeing this Fernando
de Fernando took out his revolver and fired a shot in the air. As he saw that the unknown
continued to ascend the staircase he fired at him. The unknown disappeared and ran to the
house of a neighbor Leon Torres, where, after placing upon a table the bolos that he carried,
he fell on the floor and expired. Remigio Delgado, who was in the kitchen and had recognized
the voice of the unknown, on hearing the shots ran into the parlor, took hold of the arm of the
defendant and asked him why he had fired at Buenventura Paulino. Fernando de Fernando
only said "Let me go, that is a cross eyed person" and immediately repaired to the house of
the teniente of the barrio, Santiago Torres, from where he telephoned to the chief of police
advising him of what had happened. When the body was examined it was found that a bullet
had penetrated the base of the neck at the right, imbedding itself in the left side under the skin.
The status of the accused on the night in question was that of an agent of the law, to whom
notice had been given of the presence of suspicious looking persons who might be the Moro
prisoners who had escaped from the Penal Colony of San Ramon. The appearance of a man,
unknown to him, dressed in clothes similar in color to the prisoner's uniform who was calling
the owner of the house, and the silence of Paciencia Delgado, who did not at the time
recognize the man, undoubtedly caused the accused to suspect that the unknown man was
one of the three persons that the owner of the house said were prowling around the place.
The suspicion become a reality in his mind when he saw that the man continued ascending
the stairs with a bolo in his hand, not heeding his question as to who he was. In the midst of
these circumstances and believing undoubtedly that he was a wrongdoer he tried to perform
his duty and first fired into the air and then at the alleged intruder. But it happened that what
to him appeared to be wrongdoer was the nephew of the owner of the house who was carrying
three bolos tied together. At that psychological moment when the forces of far and the sense
of duty were at odds, the accused was not able to take full account of the true situation and
the bundle of bolos seemed to him to be only one bolo in the hands of a suspicious character
who intended to enter the house. There is, however, a circumstance that should have made
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him suspect that the man was not only a friend but also a relative of the owner of the house
from the fact he called "Nong Miong," which indicated that the owner of the house might be
an older relative of the one calling, or an intimate friend; and in not asking Paciencia Delgado
who was it was that was calling her father with such familiarity, he did not use the ordinary
precaution that he should have used before taking such fatal action.

Taking into consideration the estate of mind of the accused at the time, and the meaning that
he gave to the attitude of the unknown person, in shooting the latter he felt that he was
performing his duty by defending the owners of the house against an unexpected attack, and
such act cannot constitute the crime of murder, but only that of simple homicide. He cannot
be held guilty, however, as principal with malicious intent, because he though at the time that
he was justified in acting as he did, and he is guilty only because he failed to exercise the
ordinary diligence which, under the circumstances, he should have by investigating whether
or not the unknown man was really what he though him to be. In firing the shot, without first
exercising reasonable diligence, he acted with reckless negligence.

The crime committed by the caused, therefore, is homicide through reckless negligence
defined and punished in article 568, in relation with article 404, of the Penal Code, the penalty
prescribed by law arresto mayor in its maximum degree to prision correcional in its minimum
degree.

In view of the foregoing and reversing the appealed judgment, the accused is held guilty of
the crime of homicide through reckless negligence, and he is sentenced to suffer one
year prision correcional, to pay the amount of P500 to the heirs of the deceased as an
indemnity, with subsidiary imprisonment in case of insolvency, the costs and with credit of
one-half of the preventive imprisonment already suffered. So ordered.

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

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