Crim Law 1 Case Digest: People v. Ah Chong (1910)

People v. Ah Chong 15 Phil. 488
G.R. No. L-5272  March 19, 1910
CARSON, J.

Lesson: mistake of fact, definition of felony

Laws: Article 1 RPC, Art 3 RPC

FACTS:
•    August 14, 1908 About 10 pm: Ah Chong, a cook was suddenly awakened by some trying to force open the door of the room. He sat up 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.  The defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair (thought to be an unlawful aggression) which had been placed against the door.  Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual who is a house boy or muchacho who in the spirit of mischief was playing a trick on him
•    Seeing that Pascual was wounded, he called to his employers and ran back to his room to secure bandages to bind up Pascual's wounds.
•    There had been several robberies not long prior to the date of the incident, one of which took place in a house where he was employed as cook so he kept a knife under his pillow for his personal protection.
•    trial court held it as simple homicide

ISSUE: W/N defendant 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.

HELD:  trial court should be reversed, and the defendant acquitted of the crime
NO.
•    GR: 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
EX: it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code
•    Article 1 RPC of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished by law.
o    A 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.
o    voluntary act is a free, intelligent, and intentional act
o    "malice" signifying the intent
o    Actus non facit reum nisi mens sit rea - "the act itself does not make man guilty unless his intention were so
o    “ Actus me incito factus non est meus actus” - an act done by me against my will is not my act
•    GR: 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
•    EX: 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
•    ignorantia facti excusat applies only when the mistake is committed without fault or carelessness
•    defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability 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.

Jurisprudence: G.R. No. L-5272 March 19, 1910

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5272             March 19, 1910

THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.

Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.

CARSON, J.:

The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct:

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 as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' 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 house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were 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 on the porch. Aside from the door and window, there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up 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 dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above 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, 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 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 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 wounds.

There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection.

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 had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the 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 then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day.

The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law.

At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense.

Article 8 of the Penal Code provides that —

The following are not delinquent and are therefore exempt from criminal liability:

xxx             xxx             xxx

4 He who acts in defense of his person or rights, provided there are the following attendant circumstances:

(1) Illegal aggression.

(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 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.

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 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 —

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. 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 has a club in his hand, strikes B over the head before or at the instant the pistol is discharged; and of the wound B dies. It turns out the pistol was loaded with powder 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 pistol? Those who hold such doctrine must require that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol is loaded — a doctrine which would entirely take away the essential right of self-defense. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle. (Lloyd's Rep., p. 160.)

To the same effect are various decisions of the supreme court of Spain, cited by Viada, a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar.

QUESTION III. When it is shown that the accused was sitting at his hearth, at night, in company only of his wife, without other light than reflected from the fire, and that the man with his back to the door was attending to the fire, there suddenly entered a person whom he did not see or know, who struck him one or two blows, producing a contusion on the shoulder, because of which he turned, seized the person and took from his the stick with which he had undoubtedly been struck, and gave the unknown person a blow, knocking him to the floor, and afterwards striking him another blow on the head, leaving the unknown lying on the floor, and left the house. 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 confessed the facts, had always sustained pleasant relations with his father-in-law, whom he visited during his sickness, demonstrating great grief over the occurrence. Shall he be considered free from criminal responsibility, as having acted in self-defense, with all the circumstances related in paragraph 4, article 8, of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor, without sufficient provocation, and that there did not exists rational necessity for the employment of the force used, and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment, with accessory penalty and costs. Upon appeal by the accused, he was acquitted by the supreme court, under the following sentence: "Considering, from the facts found by the sentence to have been proven, that the accused was surprised from behind, at night, in his house beside his wife who was nursing her child, was attacked, struck, and beaten, without being able to distinguish with which they might have executed their criminal intent, because of the there was no other than fire light in the room, and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence, and possibly that of his wife and child, more 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 the limits of self-defense, nor did he use means which were not rationally necessary, particularly because the instrument with which he killed was the one which he took from his assailant, and was capable of producing death, and in the darkness of the house and the consteration which naturally resulted from such strong aggression, it was not given him to known or distinguish whether there was one or more assailants, nor the arms which they might bear, not that which they might accomplish, and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed, and that it did not apply paragraph 4 of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .

QUESTION XIX. A person returning, at night, to his house, which was situated in a retired part of the city, upon arriving at a point where there was no light, heard the voice of a man, at a distance of some 8 paces, saying: "Face down, hand over you money!" because of which, and almost at the same money, he fired two shots from his pistol, distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying, "Oh! they have killed me," and hastening to his 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 not receiving a reply, and observing that his friend was a corpse, he retired from the place. Shall he be declared exempt in toto from responsibility as the author of this 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 article, but not that of the reasonableness of the means employed to repel the attack, and, therefore, condemned the accused to eight years and one day of prison mayor, etc. The supreme court acquitted the accused on his appeal from this sentence, holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him, and that under the circumstances, the darkness and remoteness, etc., the means employed were rational and the shooting justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)

QUESTION VI. The owner of a mill, situated in a remote spot, is awakened, at night, by a large stone thrown against his window — at this, he puts his head out of the window and inquires what is wanted, and is answered "the delivery of all of his money, otherwise his house would be burned" — because of which, and observing in an alley adjacent to the mill four individuals, one of whom addressed him with blasphemy, he fired his pistol at one the men, who, on the next morning was found dead on the same spot. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of the requisites of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility, but not that of reasonable necessity for the means, employed, and condemned the accused to twelve months of prision correctional for the homicide committed. Upon appeal, the supreme court acquitted the condemned, finding that the accused, in firing at the malefactors, who attack his mill at night in a remote spot by threatening robbery and incendiarism, was acting in just self-defense of his person, property, and family. (Sentence of May 23, 1877). (I Viada, p. 128.)

A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief, from whose assault he was in imminent peril, both of his life and of his property and of the property committed to his charge; that in view of all the circumstances, as they must have presented themselves to the defendant at the time, he acted in good faith, without malice, or criminal intent, in the belief that he was doing no more than exercising his legitimate right of self-defense; that had the facts been as he believed them to be he would have been wholly exempt from criminal liability 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.

Crim Law 1 Case Digest: People v. Pagador 2001

People v. Pagador

G.R. No. 140006-10 April 20, 2001

Lessons Applicable: Murder, Physical Injuries, Attempter, Frustrated,

Laws Applicable: Art. 6

FACTS:
•    Rolly Pagador, mere tricycle driver, and Nenita Mendez were sweethearts for more than 2 years. The spouses Herminigildo and Magdalena Mendez and their 7 children: Ricardo, the eldest and only son, Emily, married and Shirley, 10 years old, Nenita, Josephine, Marlyn and Rosalinda welcomed Rolly like a family allowing him to drop by their house anytime and spend the night with her or visit their household even at 1:00 o'clock or 2:00 o'clock in the morning.
•    October 12, 1996 1:00 am: Nenita, Emily, Josephine and Rosalinda were awakened by shouts of their mother Magdalena shouting, "Aray ko! Aray ko!" thinking that it’s another bout of her perennial ailment.  They were shocked to see Rolly kneeling and stabbing two handedly their mother’s back who was already slumped on the floor with her legs outstretched. Shirley was clutching her wounded stomach while lying on their mother's lap. Their father Herminigildo was sprawled motionless on the floor.  The 4 sisters approached their mother in an attempt to repulse Rolly but he swung his bolo at them, cutting Emily's left index finger in the process. Emily rushed back to her room, picked up her sleeping child and jumped out of the window.
•    Meanwhile, Nenita cried out "Rolly! Rolly!" but he swung his bolo in silent rage so she retreated from the room, also jumped out of the window and hid behind a tamarind tree.  She then saw the Rolly 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 who could not extend any assistance to her as they were too afraid.
•    Rosalinda being the last one to leave her parents' room was chased by Rolly who violently pulled her hair causing her to fall down. Rolly 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. Rolly 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 which worked.  Due to blood loss, she lowly lost consciousness.
•    Shirley testified that she was awakened when she felt someone striking her on the stomach and other parts of the body.  But she could not ascertain who was responsible for her wounds although she saw the accused wielding a bolo.
•    Legal Necropsy Examination Report the following are the cause of death:
o    Herminigildo Mendez - massive intra-thoracic hemorrhage from stab wounds on the chest, left shoulder, arm, nape, and other portions of his body
o    Magdalena Mendez - massive bleeding inside the abdomen and the thoracic cavity
o    Rosalinda Mendez – 14 hacked wounds on different parts of her body
o    Emily Mendez - amputated index finger and lacerated wound on the 4th finger of the left hand
•    Rolly’s Alibi: October 11, 1996, he had just finished his work as a tricycle driver when he decided to drop by the Mendez house. Herminigildo casually greeted him as was his habit and told him that Nenita was already asleep.  He was taken aback by his remark since Nenita had been his fiancée for more than 2 years and her family was used to him visiting during ungodly hours.  When he proceeded to Nenita’s room, Herminigildo blocked him and pushed him out of the house.  Herminigildo then went in Nenita’s room and returned with a bolo and tried to hack him but he evaded.  He then kicked the kerosene lamp and dashed towards the room of Herminigildo where the Magdalena was sleeping.  When Magdalena awakened, he asked why Herminigildo was acting that way.  But, before she could reply, Herminigildo barged into the room and hacked her believing she was Rolly. He grappled with Herminigildo and succeeded in getting the bolo.  He hacked Herminigildo him causing him to face down.  Seeing their father, the 4 sisters attacked him, kicking him and pulled his hair.  When he noticed that Rosalinda was trying to take hold of the bolo, he wrested it from her and swung it 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. While detained at the municipal jail, he discovered that Herminigildo had already committed Nenita to marry a certain seaman which explains the hostile treatment he received.
•    RTC:
o    frustrated murder on 2 counts committed individually against Shirley and Rosalinda - reclusion temporal or 12 years and 1 day to 20 years
o    frustrated murder against Emily Mendez-Castro - arresto mayor
o    murder on two (2) counts committed individually against the spouses Herminigildo and Magdalena Mendez - death for each count
•    Subject to automatic review
o    Rolly contends his plea of self-defense with Herminigildo
o    He did not intend to kill Emily and Rosalinda
o    Shirley was wounded when he and Herminigildo struggled for the possession of the bolo and fought each other to death.

ISSUE: W/N the 3 frustrated murder for Emily, Rosalinda and Shirly is an error.

HELD: YES. RTC Modified.
•    G. R. No. 140006 (Crim. Case No. 3284-A) Herminigildo Mendez - guilty of Homicide (instead of Murder as found by the trial court)
•    G. R. No. 140007 (Crim. Case No. 3285-A) Magdalena Mendez - guilty of Murder (as likewise found by the trial court)
•    G. R. No. 140008 (Crim. Case No. 3286-A) Shirley- Less Serious Physical Injuries (instead of Frustrated Murder as found by the trial court)
•    G.R. No. 140009 (Crim. Case No. 3287-A) Rosalinda - Frustrated Murder
•    G.R. No. 140010 (Crim. Case No. 3288-A, or CA-G.R. CR No. 23485, erroneously numbered G.R. NO. 143934) Emily - Serious Physical Injuries (instead of Frustrated Murder as found by the trial court)

•    Self-defense as a justifying circumstance must fail where unlawful aggression on the part of the person injured or killed was not properly established.
o    When Herminigildo Mendez barged into the room and accidentally struck his wife with a bolo, Rolly took possession of the weapon and hacked the deceased – no unlawful aggression existed
•    autopsy report could not in any way be characterized as accidental
•    Rosalinda: He stood up and left the crime scene on the belief that he had consummated his heinous act, not suspecting that Rosalinda was merely feigning death - the subjective phase had already been passed
•    Subjective phase - 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
o    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.
•    Objective phase - 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.
o    If he is not so stopped but continues until he performs the last act, it is frustrated.
•    The principal and essential element of attempted or frustrated homicide, or murder, is the intent 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.
•    When such intent is lacking but wounds were inflicted, the crime is not frustrated murder but physical injuries only
o    Apparently, his purpose was merely to drive away the 4 sisters and dissuade them from attacking him.
    Shirley’s wound would require medical attendance of more than 2 weeks or 14 days = less serious physical injuries
    Emily - serious physical injuries
•    Treachery cannot be appreciated 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 – No one saw the actual killing
o    Herminigildo Mendez – homicide (NOT murder)
o    Magdalena Mendez - repeatedly stabbed the unarmed victim who was all the time shielding and protecting her wounded child Shirley – murder
    nighttime since the same is absorbed by treachery

Jurisprudence: G.R. No. 140006-10 April 20, 2001

EN BANC

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 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 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 (4th) 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.

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.

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

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

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.

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 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 Code which 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, 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:

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;

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;

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;

In G.R. No. 140009 (Crim. Case No. 3287-A), accused-appellant is found guilty of Frustrated Murder and is sentenced to an indeterminate prison 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

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.

Davide, Jr., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.