[ G.R.No. 3956. January 10, 1908 ] 9 Phil. 544
[ G.R.No. 3956. January 10, 1908 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. EMILIO CABRERO, DEFENDANT AND APPELLANT. D E C I S I O N
TORRES, J.:
On the afternoon of the 24th of November, 1906, (several laborers working for the street-railway company, being assembled in the district of Santa Ana, city of Manila, for the purpose of receiving their wages, were directed to remain in single file and then successively approach a small house, where the paymaster had his office, in order to be regularly paid. The accused, as foreman in the service of the company, was in charge of the preservation of order and for such purpose he provided himself with a pick or spade handle, one end of which he daubed with mud and threatened to push against the clothing of the laborers if they left the line or created trouble. Benedicto Dio Pito left his place and forced his way into the file; the accused ordered him out, but he still persisted, and the accused then gave him a blow with the stick oh the right side of the head, above the ear, in consequence of which the deceased, Benedicto Dio Pito, fell to the ground holding his head with his hands; thereupon the accused and another laborer rendered him prompt assistance and took him to the interior of a warehouse close by; the injured man shortly afterwards asked for water, which, however, he was unable to drink, and became unconscious, and upon being taken to St. Paul’s Hospital died there a few hours later. In consequence of the foregoing, an information was filed with the Court of First Instance charging Emilio Carrero with the crime of homicide, and after proceedings in prosecution, the court entered judgment on the 4th of December, 1906, sentencing the accused, as guilty of the crime of homicide, to the penalty of six years and one day of presidio mayor. The fact that the deceased received a heavy blow with a stick, on the right side of the head, above the ear, and that in consequence thereof he died shortly after, was fully proven in the trial, and constitutes the crime of homicide as defined in article 404 of the Penal Code; in the commission of the above crime none of the characteristics of the crime of murder, as described in article 403 of said code, were present. The accused pleaded not guilty, although he confessed to having struck the deceased on the right side of his head with a pick handle, one of the working tools; it is therefore unquestionable that he is the author of the violent death of Benedicto Dio Pito. The accused, however, alleges that when he struck the blow he merely acted in self-defense in view of the attitude of the deceased, who, after insulting him, thrust his hand into his pocket as if for the purpose of drawing a dagger or a pocketknife and that in order to defend himself, because he believed that the deceased, owing to his attitude, was about to attack him, he struck him the blow with the stick he had provided himself with, in consequence of which the deceased fell to the ground, then arose at once, vomited, and then sat down; that he and two other men then assisted the deceased and conducted him to the interior of a warehouse, where he became unconscious, and later on he died in St. Paul’s Hospital, whereto he was removed. The statement of facts as made by the accused, by his counsel, and witnesses is lacking in truth; it is rather exaggerated and is not supported by the evidence adduced at the trial. But even taking the same to be true, it is unquestionable that there was some insult or provocation on the part of the unfortunate Benedicto Dio Pito, but no attack or aggression was made by him upon the accused to justify the violent assault by the latter with a stick, for it has not been shown that the deceased carried in his pocket or elsewhere any weapon or deadly instrument, so that there was not even an actual threat or imminent peril of an attack upon the accused. Unlawful aggression is the main and most essential element to support the theory of self-defense and the complete or incomplete exemption from criminal liability; without such primal requisite it is not possible to maintain that a person acted in self-defense within the terms under which unlawful aggression is subordinate to the other two conditions named in article 8, No. 4, of the Penal Code. When an act of aggression is in response to an insult, affront, or threat, it can not be considered as a defense but as the punishment which the injured party inflicts on the author of the provocation, and in such a case the courts can at most consider it as a mitigating circumstance, but never as a reason for exemption, except in violation of the provisions of the Penal Code. The theory that by the simple belief of a person that he would be attacked, a deadly blow may be inflicted on the ground of self-defense, even though it be with a stick, is not authorized by the law nor is it a doctrine established by the decisions of courts. In the judgment of the supreme court of Spain, dated October 31,1889, not only was the belief of the individual who was obliged to defend himself considered but also the hostile attitude and other acts which, in the opinion of the court, were considered as real and ostensible acts of aggression; and, in other decisions of October 30, 1884, March 19, 1885, and November 15, 1889, a uniform doctrine was established to the effect that a threat even if made with a weapon, or the belief that a person was about to be attacked, is not sufficient, but that it is necessary that the intent be ostensibly revealed by an act of aggression or by some external acts showing the commencement of actual and material unlawful aggression. In this case the attitude and behavior of the deceased at the time certainly did not constitute the unlawful aggression which the law requires, and the insulting words addressed to the accused, no matter how objectionable they may have been, could not constitute so important a requisite as the aggression defined in the Penal Code. It is not shown in the record of the case that the serious injury suffered by the deceased, and which caused his death, was not due to the blow he received from the accused, but to the striking of the head of the deceased against the ground when he was allowed to fall by the two men who removed him to the warehouse, as alleged by the accused; apart from the fact that the floor of the warehouse is of pine wood and not of stone, even though the shock was received, one can not believe that it was so heavy as to produce cerebral hemorrhage, and that death ensued in consequence thereof. Therefore, the lower court has rightly concluded that the death of the deceased was due to the blow he received on the head, not to the shock of his fall, and this conclusion is supported by the evidence which counsel for the accused has not rebutted nor contested in this instance. In the commission of the homicide in question the circumstance of the accused being under 18 years of age must be considered, according to No. 2 of article 9 of the Penal Code, which requires, in connection with paragraph 2 of article 85 of said code, that the penalty next lower to the one imposed by article 404 should be applied. The penalty of prision mayor should ordinarily be imposed on the accused, but taking into account the mitigating circumstances 3 and 4 of said article 9, viz, that he never intended to cause so serious a harm as the death of Benedicto Dio Pito, and owing to the fact that provocation on the part of the latter immediately preceded the attack by the accused, and also considering that no aggravating circumstance is present, and, under rule 5 of article 81 of the code, the appropriate penalty to be inflicted on the accused should be the next lower to the above-mentioned penalty of prision mayor, that is, prision correccional in its medium degree. Therefore, In view of the foregoing, it is our opinion that the judgment appealed from should be reversed and that Emilio Carrero should be sentenced to the penalty of two years four months and one day of prision correctional, to suffer the accessory penalties of article 61 of the code, to pay P1,000 to the heirs of the deceased, or, in case of insolvency, to suffer subsidiary imprisonment not to exceed one-third of the principal penalty, and to pay the costs of both instances, and it is so ordered. Arellano, C. J., and Mapa. J., concur.