[ G.R. No. L-162. April 30, 1947 ] G.R. No. L-162
[ G.R. No. L-162. April 30, 1947 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. DIOSCORO ALCONGA AND ADOLFO BRACAMONTE, DEFENDANTS. DIOSCORO ALCONGA, APPELLANT. D E C I S I O N
HILADO, J.:
On the night of May 27, 1943, in the house of one Mauricio Jepes in the municipality of San Dionisio, Province of Iloilo several persons were playing prohibited games (t. s. n., pp. 95, 125). The deceased Silverio Barion was the banker in the game of black jack, and Maria de Raposo, a witness for the prosecution, was one of those playing the game (t. s. n., p. 95). Upon invitation of the said Maria de Raposo, the accused Dioscoro Alconga joined her as a partner, each of them contributing the sum of P5 to a common fund (t. s. n., pp. 95, 125). Maria de Raposo played the game while the said accused posted himself behind the deceased, acting as a spotter of the cards of the latter and communicating by signs to his partner (t. s. n., pp. 95-96, 126). The deceased appears to have suffered losses in the game because of the team work between Maria de Raposo and the accused Alconga (t. s. n., pp. 96, 126). Upon discovering what the said accused had been doing, the deceased became indignant and expressed his anger at the former (t. s. n., pp. 96, 126). An exchange of words followed, and the two would have come to blows but for the intervention of the maintainer of the games (t. s. n., p. 96). In a fit of anger, the deceased left the house but not before telling the accused Alconga, “tomorrow morning I will give you a breakfast” (t. s. n., p. 96), which expression would seem to signify an intent to inflict bodily harm when uttered under such circumstances.
The deceased and the accused Alconga did not meet thereafter until the morning of May 29, 1943, when the latter was in the guard house located in the barrio of Santol, performing his duties as “home guard” (t. s. n., pp. 98-100). While the said accused was seated on a bench in the guard house, the deceased came along and, addressing the former, said, “Coroy, this is your breakfast,” followed forthwith by a swing of his “pingahan” (t. s. n., p. 100). The accused avoided the blow by falling to the ground under the bench with intention to crawl out of the guard house (t. s. n., pp. 100-101). A second blow was given but failed to hit the accused, hitting the bench instead (t. s. n., p. 101). The accused managed to go out of the guard house by crawling on his abdomen (t. s. n., p. 101). While the deceased was in the act of delivering the third blow, the accused, while still in a crawling position (t. s. n., p. 119), fired at him with his revolver, causing him to stagger and to fall to the ground (t. s. n., p. 101). Rising to his feet, the deceased drew forth his dagger and directed a blow at the accused who, however, was able to parry the same with his bolo (t. s. n., pp. 101-102). A hand-to-hand fight ensued (t. s. n., p. 102). Having sustained several wounds, the deceased ran away but was followed by the accused (t. s. n., p. 6). After running a distance of about 200 meters (t. s. n., pp. 21, 108), the deceased was overtaken, and another fight took place, during which the mortal bolo blow—the one which slashed the cranium—was delivered, causing the deceased to fall to the ground, face downward, besides many other blows delivered right and left (t. s. n., pp. 6, 28). At this instant, the other accused, Adolfo Bracamonte, arrived and, being the leader of the “home guards” of San Dionisio, placed under his custody the accused Alconga with a view to turning him over to the proper authorities (t. s. n., pp. 102-105).
On their way to San Dionisio, the two accused were stopped by Juan Collado, a guerilla soldier (t. s. n., pp. 80, 104). Adolfo Bracamonte turned over Alconga to Collado who in turn took him to the headquarters (t. s. n., pp. 8l, 104). In the afternoon of the same day, Collado delivered Alconga to Gregorio Barredo, a municipal policeman of San Dionisio, together with the weapons used in the fight: a revolver, a bolo, and a dagger (t. s. n., pp. 81, 104).
The injuries sustained by the deceased were described by Police Sergeant Gil G. Estaniel as follows:
“P. ¿Y que hicieron ustedes cuando ustedes vieron a Silverio Barion?—R. Examine sus heridas.
“P. ¿Donde ha encontrado usted las heridas, en que parte del cuerpo?—R. En la cabeza, en sus brazos, en sus manos, en la mandibula inferior, en la parte frente de su cuello, en su pecho derecho, y tambien en el pecho izquierdo, y su dedo meñique habia volado, se habia cortado, y otras pequeñas heridas mas.
“P. ¿En la cabeza, vio usted heridas?—R. Si, señor.
“P. ¿Cuantas heridas?—R. Una herida en la region parietal derecha y una contusion en la corona de la cabeza.
“P. ¿Vio usted el craneo?—R. En el craneo llevaba una herida, en que el craneo se ha roto.
“P. ¿En el pecho, que herida ha encontrado usted?—R. Debajo de la tetilla derecha, una herida causada por una bala.
“P. ¿Y otras heridas en el pecho, puede usted decir que clase de heridas?—R. Heridas causadas por bolo.
“P. ¿Como de grande aquellas heridas en el pecho?—R. No recuerdo la dimension de las heridas en el pecho.
“P. ¿Pero en la cabeza?—R. La cabeza se rajo por aquella herida causada por el bolo.” (T. s. n., p. 25.)
It will be observed that there were two stages in the fight between appellant and the deceased. The initial stage commenced when the deceased assaulted appellant without sufficient provocation on the part of the latter. Resisting the aggression, appellant managed to have the upper hand in the fight, inflicting several wounds upon the deceased, on account of which the latter fled in retreat. From that moment there was no longer any danger to the life of appellant who, being virtually unscathed, could have chosen to remain where he was. Resolving all doubts in his favor, and considering that in the first stage the deceased was the unlawful aggressor and defendant had not given sufficient provocation, and considering further that when the deceased was about to deliver the third blow, appellant was still in a crawling position and, on that account, could not have effectively wielded his bolo and therefore had to use his “paltik” revolver—his only remaining weapon—; we hold that said appellant was then acting in self-defense.
But when he pursued the deceased, he was no longer acting in self-defense, there being then no more aggression to defend against, the same having ceased from the moment the deceased took to his heels. During the second stage of the fight appellant inflicted many additional wounds upon the deceased. That the deceased was not fatally wounded in the first encounter is amply shown by the fact that he was still able to run a distance of some 200 meters before being overtaken by appellant. Under such circumstances, appellant’s plea of self-defense in the second stage of the fight cannot be sustained. There can be no defense where there is no aggression.
“Although the defendant was not the aggressor, he is not exempt from criminal liability for the reason that it is shown that he struck several blows, among them the fatal one, after the necessity for defending himself had ceased, his assailant being then in retreat. Therefore one of the essential ingredients of self-defense specified in No. 4, Article 8 of the Penal Code is wanting” (now Article 11, Case No. 1, Revised Penal Code). (United States vs. Dimitillo, 7 Phil., 475, 476; words in parenthesis supplied.)
“* * * Even if it be conceded for the moment that the defendants were assaulted by the four (offended parties), the right to kill in self-defense ceased when the aggression ceased; and when Toledo and his brothers turned and ran, without having inflicted so much as a scratch upon a single one of the defendants, the right of the defendants to inflict injury upon them ceased absolutely. They had no right to pursue, no right to kill or injure. A fleeing man is not dangerous to the one from whom he flees. When the danger ceases, the right to injure ceases. When the aggressor turns and flees the one assaulted must stay his hand.” (United States vs. Vitug, 17 Phil., 1, 19; italics supplied.)
Upon the foregoing facts, we hold that appellant’s guilt of the crime of homicide has been established beyond reasonable doubt. The learned trial court appreciated in his favor two mitigating circumstances: voluntary surrender and provocation on the part of the deceased. The first was properly appreciated; the second was not, since it is very clear that from the. moment he fled after the first stage of the fight to the moment he died, the deceased did not give any provocation for appellant to pursue, much less further to attack him.
The only provocation given by him was imbibed in, and inseparable from, the aggression with which he started the first stage of the fight. The evidence, as weighed and appreciated by the learned trial judge, who had heard, seen and observed the witnesses testify, clearly shows that said stage ended with the flight of the deceased after receiving a bullet wound in his right breast, which caused him to stagger and fall to the ground, and several bolo wounds inflicted by appellant during their hand-to-hand fight after both had gotten up. The learned trial judge said:
“The evidence adduced by the prosecution and the defense in support of their respective theories of the case vary materially on certain points. Some of these facts have to be admitted and some have to be rejected with the end in view of arriving at the truth. To the mind of the Court, what really happened in the case at bar, as can be disclosed by the records, which lead to the killing of the deceased on that fatal morning of May 29, 1945 (should be 1943), is as follows:
* * * * * * *
“In the morning of May 29, 1943, while Dioscoro Alconga was alone in the guard house performing his duties as guard or ‘ronda’ in barrio Santol, the deceased Silverio Barion passed by with a ‘pingahan.’ That was the first time the deceased and the accused Alconga had met since that eventful night of May 27th in the gambling house of Gepes. Upon seeing the accused Algonga, who was then seated in the guard house, the deceased cried: ‘Coroy, this is now the breakfast!’ These words of warning were immediately followed by two formidable swings of the ‘pingahan’ directed at the accused Alconga which failed to hit him. Alconga was able to avoid the blows by falling to the ground and crawling on his abdomen until he was outside the guardhouse. The deceased followed him and while in the act of delivering the third blow, Dioscoro Alconga fired at him with his revolver thereby stopping the blow in mid-air. The deceased fell to the ground momentarily and upon rising to his feet, he drew forth a dagger. The accused Alconga resorted to his bolo and both persons being armed, a hand-to-hand fight followed. The deceased having sustained several wounds from the hands of Alconga, ran away with the latter close to his heels.”
The foregoing statement of the pertinent facts by the learned trial judge is in substantial agreement with those found by us and narrated in the first paragraphs of this decision. Upon those facts the question arises whether when the deceased started to run and flee, or thereafter, until he died, there was any provocation given by him for appellant to pursue and further to attack him. It will be recalled, to begin with, that the first stage of the fight was provoked when the deceased said to appellant “Coroy, this is now the breakfast”, or “This is your breakfast”, followed forthwith by a swing or two of his “pingahan”. These words without the immediately following attack with the “pingahan” would not have been uttered, we can safely assume, since such an utterance alone would have been entirely meaningless. It was the attack, therefore, that effectively constituted the provocation, the utterance being, at best, merely a prelude to the attack. At any rate, the quoted words by themselves, without the deceased’s act immediately following them, would certainly not have been considered a sufficient provocation to mitigate appellant’s liability in killing or injuring the deceased. For provocation in order to be a mitigating circumstance must be sufficient and immediately preceding the act. (Revised Penal Code, Article 13, No. 4.)
Under the doctrine in United States vs. Vitug, supra, when the deceased ran and fled without having inflicted so much as a scratch upon appellant, but after, upon the other hand, having been wounded with one revolver shot and several bolo slashes, as aforesaid, the right of appellant to inflict injury upon him ceased absolutely—appellant “had no right to pursue, no right to kill or injure” said deceased—for the reason that “a fleeing man is not dangerous to the one from whom he flees.” If the law, as interpreted and applied by this Court in the Vitug case, enjoins the victorious contender from pursuing his opponent on the score of self-defense, it is because this Court considered that the requisites of self-defense had ceased to exist, principal and indispensable among these being the unlawful aggression of the opponent (Rev. Penal Code, Article 11, No. 1; 1 Viada, 5th ed., 173).
Can we find under the evidence of record that after the cessation of said aggression the provocation thus involved therein still persisted, and to a degree sufficient to extenuate appellant’s criminal responsibility for his acts during the second stage of the fight? Appellant did not testify nor offer other evidence to show that when he pursued the deceased he was still acting under the impulse of the effects of that provocation, be it anger, obfuscation or the like. The Revised Penal Code provides:
“ART. 13. Mitigating circumstances:
* * * * * * *
“4. That sufficient provocation or threat on the part of the offended party immediately preceded the act.”
It is therefore apparent that the Code requires for provocation to be such a mitigating circumstance, that it not only immediately precede the act but that it also be sufficient. In the Spanish Penal Code, the adjective modifying said noun is “adecuada” and the Supreme Court of Spain in its judgment of June 27, 1883, interpreted the equivalent provision of the Penal Code of that country, which was the source of our own existing Revised Penal Code, that “adecuada” means proportionate to the damage caused by the act. Viada (Vol. 11, 5th ed., p. 51) gives the ruling of that Supreme Court as follows:
“El Tribunal Supremo ha declarado que la provocacion o amenaza que de parte del ofendido ha de preceder para la disminucion de la responsabilidad criminal debe ser proporcionada al daño que se cause, lo cual no concurre a favor del reo si resulta que la unica cuestion que hubo fue si en un monton de yeso habia mas o menos cantidad, y como perdiera la apuesta y bromeando dijera el que la gano que beberia vino de balde, esa pequeña cuestion de amor propio no justificaba en modo alguno la ira que le impelio a herir y matar a su contrario.” (S. de 27 de junio de 1883, Gaceta de 27 de septiembre.)
Justice Albert, in his commentaries on the Revised Penal Code, 1946 edition, page 94, says: “The provocation or threat must be sufficient, which means that it should be proportionate to the act committed and adequate to stir one to its commission” (italics supplied).
Sufficient provocation, being a matter of defense, should, like any other, be affirmatively proven by the accused. This the instant appellant has utterly failed to do. Any way, it would seem self-evident that appellant could never have succeeded in showing that whatever remained of the effects of the deceased’s aggression, by way of provocation after the latter was already in flight, was proportionate to his killing his already defeated adversary.
That provocation gave rise to a fight between the two men, and may be said, not without reason, to have spent itself after appellant had shot the deceased in his right breast and caused the latter to fall to the ground; or—making a concession in appellant’s, favor—after the latter had inflicted several bolo wounds upon the deceased, without the deceased so much as having scratched his body, in their hand-to-hand fight when both were on their feet again. But if we are to grant appellant a further concession, under the view most favorable to him, that aggression must be deemed to have ceased upon the flight of the deceased—upon the end of the first stage of the fight. In so affirming, we had to strain the concept in no small degree. But to further strain it so as to find that said aggression or provocation persisted even when the deceased was already in flight, clearly accepting defeat and no less clearly running for his life rather than evincing an intention of returning to the fight, is more than we can sanction. It should always be remembered that “illegal aggression” is equivalent to assault or at least threatened assault of an immediate and imminent kind.
“Agresion ilegitima.—Agresion vale tanto como acometimiento. Para que exista el derecho de defensa es preciso que se nos acometa, que se nos ataque, o cuando menos, que se nos amenace de atacarnos de un modo inmediato e inminente; v. gr., desenvainando el puñal para herirnos con el o apuntando la pistola para dispararla contra nosotros.” (Viada, 5.a edicion, 173.)
After the flight of the deceased there was clearly neither an assault nor a threatened assault of the remotest kind. It has been suggested that when pursuing his fleeing opponent, appellant might have thought or believed that said opponent was going to his house to fetch some other weapon. But whether we consider this as a part or continuation of the self-defense alleged by appellant, or as a separate circumstance, the burden of proof to establish such a defense was, of course, upon appellant, and he has not so much as attempted to introduce evidence for this purpose. If he really thought so, or believed so, he should have positively proven it, as any other defense. We cannot now gratuitously assume it in his behalf.
It is true that in the case of United States vs. Rivera (41 Phil., 472, 474), this Court held that one defending himself or his property from a felony violently or by surprise threatened by another is not obliged to retreat but may pursue his adversary until he has secured himself from danger. But that is not this case. Here from the very start appellant was the holder of the stronger and more deadly weapons—a revolver and a bolo, as against a piece of bamboo called “pingahan” and a dagger in the possession of the deceased. In actual performance appellant, from the very beginning, demonstrated his superior fighting ability; and he confirmed it when after the deceased was first felled down by the revolver shot in his right breast, and after both combatants had gotten up and engaged in a hand-to-hand fight, the deceased using his dagger and appellant his bolo, the former received several bolo wounds while the latter got through completely unscathed. And when the deceased thereupon turned and fled, the circumstances were such that it would be unduly stretching the imagination to consider that appellant was still in danger from his defeated and fleeing opponent. Appellant preserved his revolver and his bolo, and if he could theretofore so easily overpower the deceased, when the latter had not yet received any injury, it would need, indeed, an unusually strong positive showing—which is completely absent from the record—to persuade us that he had not yet “secured himself from danger” after shooting his weakly armed adversary in the right breast and giving him several bolo slashes in different other parts of his body. To so hold would, we believe, be unjustifiably extending the doctrine of the Rivera case to an extreme not therein contemplated.
Under article 249, in relation with article 64, No. 2, of the Revised Penal Code, the crime committed by appellant is punishable by reclusion temporal in its minimum period, which would be from 12 years and 1 day to 14 years and 8 months. However, in imposing the penalty, we take into consideration the provisions of section 1 of the Indeterminate Sentence Law (Act No. 4103), as amended by Act No. 4225. Accordingly, we find appellant guilty of the aforesaid crime of homicide and sentence him to an indeterminate penalty of from 6 years and 1 day of prision mayor to 14 years and 8 months of reclusion temporal, to indemnify the heirs of the deceased in the sum of P2,000, and to pay the costs.
As thus modified, the judgment appealed from is hereby affirmed. So ordered.
Moran, C.J., Pablo, Bengzon, Briones, Hontiveros, Padilla, and Tuason, JJ., concur.
MORAN, C. J.:
I certify that Mr. Justice Feria concurs in this decision.