SELF-DEFENSE

People vs Boholst-Caballero

Facts:(According to Boholst)

The couple had a rough marriage. Soon after, Caballero left, and Boholst and her daughter was left to the support of her parents.

One night, after carolling, Boholst met Caballero who upon seeing her, manhandled her. There were an exchange of words and later on, Caballero was already holding her by the hair and slapping her face until her nose bled.

Caballero pushed her to the grounds, and to stop herself from falling, she held on to his waist. As she did so, she grasped the knife tucked by the left side of his body.

She fell to the ground then Caballero knelt over her and chocked her saying that he will kill her. Because she had no other recourse, she pulled out the knife of her husband and thrust it at him, hitting the left side of his body near the belt line.

When she was finally free, she ran home and on the way, she threw the knife.

In the morning, she surrendered to the police and presented the torn and blood-stained dress she wore that night. The police officer accompanied her to look for the weapon but when it can no longer be found, she was advised to just give any knife and she did (now marked Exhibit C).

(According to the Prosecution’s witness, Caballero’s friend)

On the night of the incident, Boholst was already waiting for Caballero, and when he approached her, she suddenly stabbed Francisco her with the knife marked by the prosecution as Exhibit C.

His friends brought him to the hospital where he was later interviewed by the police officer confirming that his wife stabbed

him. But because he needs blood transfusion, he needs to be transferred to another hospital. He died on the way.

Issue: Did Boholst act in legitimate defense of her person?Held: Yes.Ratio decidendi:

The RTC held that Boholst’s evidence was not clear and convincing:

Testimony improbable as brought out by her demonstration during the trial

No wound or injury on her body treated by the physician

That the knife used was a Moro knife and not exhibit C is incredible

Contradictory statements Has motive: husband’s

abandonment The court departs from the general

rule that appellate court will not disturb the findings of the trial court on facts testified by the witnesses

The trial court judge overlooked an important piece of evidence that could confirm the narration of the appellant: location of the wound inflicted on the victim.

As she was flat on her back and and her husband choking her, she had no other recourse but to pull out the knife inserted at the left side of her husband’s belt and stabbed him hitting the left back portion just below the waist, as also described by the attending physician as the left lumbar region.

The fact that the blow landed in the vicinity from where the knife was drawn is a strong indication of the truth of her testimony, for as she lay on the ground with her husband bent over her it was quite natural for her right hand to get hold of the knife tucked in the left side of the man’s belt and thrust it at that section of the body nearest to her hand at the moment.

This particular location of the wound negates the credibility of the prosecution witness that is if it was true, then the wound should have been directed towards the front of the body of the victim rather than at his back.

The Court finds the location of the wound as a valuable circumstance which confirms the plea of self-defense.

Appellant also lacks motive. She declared that she still loved her husband and for several months prior to the incident, she appeared resigned to her fate.

She also surrendered herself immediately the morning after.

The court also believed that the knife must be a blade of six inches as stated by Boholst for it to penetrate through the left lumbar region to the victim’s large intestine and cause the discharge of fecal matter. >.<

All the elements of self-defense are present:

unlawful aggression as pointed out above

reasonable necessity for means employed: woman strangled and chocked by a furious aggressor, rendered almost unconcious by the strong pressure on her throat. What is vital is the imminent peril to Boholst’s life. The knife afforded appellant the only reasonable means with which she could free and save herself. Necessity knows no law.

Lack of sufficient provocation: Boholst did not provoke Caballero. She gave a valid excuse that she went carolling to earn money for their child.

 Boholst acted in the legitimate defense of her person. Judgment of conviction set aside. Acquitted.

People vs Alconga

Facts: On May 27, deceased Silverio Barion, the banker of the card game, was playing black jack against Maria De Raposo. De Raposo and Alconga were partners in the game, they had one money. Alconga was seated behind Barion and he gave signs to De Raposo. Barion, who was suffering losses in the game, found this out and he expressed his anger at Alconga. The two almost fought outright this was stopped. 

The two met again on May 29. when Alconga was doing his job as a home guard. While the said accused was seated on a bench in the guardhouse, Barion came along and said “Coroy, this is your breakfast” followed by a swing of his “pingahan”, a bamboo stick. Alconga avoided the blow by falling to the ground under the bench with the intention to crawl out of the guardhouse. A second blow was given by Barion but failed to hit the accused, hitting the bench instead. Alconga managed to go out of the guardhouse by crawling on his abdomen. While Barion was about to deliver the 3rd blow, Alconga fired at him with his revolver, causing him to stagger and hit the ground. The deceased stood up, drew forth his dagger and directed a blow to the accused who was able to parry the attack using his bolo. A hand to handfight ensued. The deceased, looking already beaten and having sustained several wounds ran away. He was followed by the accused and was overtaken after 200 meters. 

A second fight took place and the deceased received a mortal bolo blow, the one which slasehde the cranium. The deceased fell face downward besides many other blows delivered. Alconga surrendered. 

Issue: Whether or not self-defense can be used as a defense by Alconga

Held: No. Self-defense cannot be sustained. Alconga guilty of Homicide 

The deceased ran and fled w/o having to inflicted so much a scratch to Alconga, but

after, upon the other hand, having been wounded with one revolver shot and several bolo slashes the right of Alconga to inflict injury upon him has ceased absolutely/ Alconga had no right to pursue, no right to kill or injure. He could have only attacked if there was reason to believe that he is still not safe. In the case at bar, it is apparent that it is Alconga who is the superior fighter and his safety was already secured after the first fight ended. There was no more reason for him to further chase Barion. The second fight will be treated differently and independently. Under the first fight, self-defense would have been valid, but that is not the case in the second fight. In the second fight, there was illegal aggression on the part of Alconga and as a result, he is found guilty of Homicide with no mitigating circumstance (MC) of Provocation 

Note – Provocation in order to be an MC must be sufficient and immediately preceding the act. “It should be proportionate to the act committed and adequate to stir one to its commission” 

United States vs Mack

FACTS: Setting: May 4, 1906, nighttime,

Tacloban, Leyte Accused Mack (black soldier) was

sitting on a bench a few feet back from the street, in an open space (3-4 feet wide) between Olimpia’s tienda (canteen) and another building

Deceased Estanislao Indic (policeman) and another policeman approached, ordered Olimpia to close the canteen, ordered Mack and another soldier nearby to go to their quarters. Mack did not obey.

Deceased began cursing and abusing Mack for his failure to obey orders. Companion policeman was trying to restrain him but he broke free and started toward the accused, drawing his bolo (14.5-inch-long blade) and brandishing it in a threatening manner. Deceased

is believed to have been under the influence of alcohol at this time.

Accused got up, drew his revolver, fired 3 shots in rapid succession (deceased was about 3-6 feet away at this point) – one hit the left breast, just above the nipple, the other hit the back of the head.

Mack asserted self-defense but trial court found it to be an “incomplete defense” (did not prove the reasonable necessity of the means employed to prevent or repel the aggression)

Trial court convicted Mack of homicide (two degrees lower than the crime he was charged with: assassination)

ISSUES:1. Did Mack shoot Estanislao Indic in

self-defense?2. Can he be held criminally liable?

RULING: REVERSED1. Yes – self-defense

Elements of self-defense: (1) unlawful aggression, (2) no sufficient provocation on the part of the accused, (3) reasonable necessity for the employment of the means taken to prevent/resist such unlawful aggression

Weight of evidence clearly maintains the accused’s contention that he did and said nothing to provoke or offend the deceased, except in so far as his failure to obey the order to go back to his quarters may have had that effect

Under the circumstances, accused had no reasonable grounds to believe that he could safely escape the situation.

Mere physical superiority (Mack was bigger and taller than the victim) is no protection to an unarmed man against an assailant with a large bolo. Furthermore, Indic’s intoxication probably rendered him more dangerous.

Accused could not reasonably be expected to take the chance that ordinary force would be used in striking, or that the blow would be given upon some protected part of his body, or that the cutting edge of the blade was not keen enough to give him his death blow.

The reasonable and natural thing for him to do under the circumstances was to fire at the body of his opponent, and thus make sure of his own life.

2. No – criminal liability The fact that this court has held

that the taking of a life was not reasonably necessary in defending oneself against assault does not sustain a ruling that taking the life of one’s assailant may not become reasonably necessary in the defense of one’s person.

Case 4 of Article 8 of Penal Code: an accused person is entitled to exemption from criminal liability based on self-defense.

People vs Sumicad

FACTS: Setting: Feb 23, 1931, 5:30pm,

Plaridel, Occidental Misamis Accused Julian Sumicad was resting

from hauling logs for the construction of a chapel. Segundo Cubol passed by where he was resting.

Sumicad had rendered five and a half days of service to Cubol. He asked Cubol for the money (payment) that Cubol owed him.

Cubol answered with, “What debt!”, insulted Sumicad and struck him with his fist.

Sumicad got up and moved backward, trying to escape, but Cubol pursued him. Sumicad found himself cornered by a pile of logs. As Cubol pressed upon him, Sumicad drew his bolo and delivered a blow to the right shoulder. Cubol lunged at Sumicad,

trying to wrestle the bolo from him. Sumicad struck two other blows. One blow broke through the cranium, the other made a cut extending from the left eyebrow to the nose and upper lip.

Cubol gave down and crawled away, sat on a nearby log.

Witness Francisco Villegas asked Cubol if he had struck Sumicad with his fists, he said yes. Villegas told Sumicad to surrender himself to the authorities, which he did.

Cubol died in about an hour. A knife was found in his pocket. Sumicad testified that when he inflicted the blow, Cubol was trying to draw the knife from his pocket.

ISSUE:1. Did Sumicad inflict blows in self-

defense?2. Is Sumicad criminally liable?

RULING: REVERSED1. Yes

Element #1: Deceased was aggressor – Cubol admitted that he hit Sumicad with his fists

Element #2: There was lack of sufficient provocation on the part of the accused – quarrel which resulted to Cubol’s death was of his own doing; accused was not materially to blame in bringing about trouble

When the aggression begun, the accused retreated until he was cornered in the angle of a pile of logs.

Accused first delivered a cut on the left shoulder (labo nito, kanina sabi right tapos ngayon left). Sanitary officer reported that this could not have resulted in death. Instead of desisting assault, deceased pressed forward and tried to get the bolo. Given this, accused was justified in using the bolo as a weapon, for it would have been an act of suicide to permit that weapon to pass into the hands of his assailant.

The reputation of the deceased for violence is pertinent, for it shows that when the fatal blows were struck, the accused had reasonable grounds for believing that he was in grave peril to life or limb. Deceased was known to his neighbors to be a dangerous man.

Under the circumstances, Sumicad had the right to resist the aggression with the bolo, and if he unfortunately inflicted a fatal blow, it must be considered to have been given in justifiable self-defense.

2. No All elements necessary to

constitute justifiable self-defense are present in the case.

DISSENTING OPINION: C.J. Avanceña Incomplete self-defense:

defendant’s use of bolo was not a reasonably necessary means of defending himself against the other’s attack, which was but a matter of fisticuffs

having received the first blow on the arm, the deceased was justified in acting as he did, in the reasonable belief that defendant would continue the attack with that weapon.

People vs Genosa

Facts: According to Marivic Genosa, on

the evening of November 15 1995, after going home after work, she, together with her cousin Ecel Arano, looked for her husband because she was worried that he was gambling again. When she returned after looking for him, Ben was already home drunk. Ben nagged her for following him, and challenged her to fight. When she ignored him, he got angrier and did a number of things, including cutting the television antenna to keep her from watching TV, whirling Marivic, holding her by the neck, causing her to fall on the side

of the bed, etc. Marivic thereafter packed Ben’s clothes because she wanted him to leave but when he saw this, he flew into a rage, held her by the neck, and told her, “You might as well be killed so nobody would nag me.” He dragged her by the neck towards a drawer where a gun was but he couldn’t open the said drawer so he just got a three-inch blade from his wallet. At this point, Marivic “smashed” his arm and “smashed” Ben’s nape with a pipe when the blade and the wallet fell and Ben was about to pick them up. Marivic claims to have run to the bedroom then. She shot her husband with the aforementioned gun afterwards, but at the time she shot him, he already went to bed.

Marivic was charged and convicted of parricide; sentenced to death (because of the generic aggravating circumstance of treachery)

Marivic admitted in court to killing her husband and anchored her prayer for acquittal on the “battered woman syndrome” (BWS), a form of self-defense (or at least, incomplete self-defense) that has been appreciated, at the time of the case, only in other jurisdictions, particularly the US and UK

o The BWS was first raised in the SC

Three phases of the “cycle of violence” of the BWS: 1) the tension-building phase, 2) the acute battering incident, and 3) the tranquil, loving (or, at least, nonviolent) phase

o Characterized by learned helplessness, inability to leave the husband, belief that the beaten wife is somehow responsible for the behavior of her husband, feeling of being unsafe, pervasive anxiety, etc.

Issue:

Whether or not self-defense can be appreciated as a justifying circumstance based on the novel theory of BWS

Held: No. RTC judgment was affirmed,

but because of two mitigating circumstances and no aggravating circumstance, and she already served her minimum sentence, she was qualified to apply for parole.

But Marivic is entitled to the following mitigating circumstances:

o Diminution of her freedom of action, intelligence or intent: because the severity of the violence against her, as proven by various Psychological experts in court, is analogous to an illness that diminished the exercise of her will power, but without depriving her of consciousness of her acts

o Having acted upon an impulse so powerful as to have naturally produced passion and obfuscation: even though she was able to retreat to a separate room, her emotional and mental state continued after Ben’s aggression

The aggravating circumstance of treachery was not appreciated in the SC, unlike in the RTC: when the killing is preceded by an argument or quarrel, treachery cannot be appreciated

Ratio: The court failed to find ample

evidence that would confirm the presence of the essential characteristics of BWS

Only the second phase (i.e. the acute battering incident) of the BWS cycle was sufficiently proven by the defense

In any event, the existence of BWS does not in itself establish the legal right of the woman to kill her abusive partner. Evidence must still be considered in the context of self-defense.

Crucial is the state of mind of the woman at the time of the offense; although actual physical assault is not required for BWS cases, impending danger must still be shown (i.e. threatening behavior or communication on the part of the victim)

In the case, Ben apparently ceased his attack and went to bed at the time Marivic shot him

Aggression, if not continuous, does not warrant self-defense

Additional notes: The court went on to make a point

about the requirements of BWS in order to be appreciated as self-defense:

1) Each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner

2) The final acute battering episode preceding the killing of the batterer must have produced in the battered person’s mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life.

3) At the time of the killing, the batterer must have posed probable -- not necessarily immediate and actual -- grave harm to the accused, based on the history of violence perpetrated by the former against the latter. Taken altogether, these circumstances could satisfy the requisites of self-defense.

Under the existing facts of the present case, however, not all of these elements were duly established.

RA 9262

Section 3. Definition of Terms.- As used in this Act,(a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:A. "Physical Violence" refers to acts that include bodily or physical harm;B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to:a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;c) Prostituting the woman or child.C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and mental infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to

unlawful or unwanted deprivation of the right to custody and/or visitation of common children.D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following:1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common;3. destroying household property;4. controlling the victims' own money or properties or solely controlling the conjugal money or properties.(b) "Battery" refers to an act of inflicting physical harm upon the woman or her child resulting to the physical and psychological or emotional distress.(c) "Battered Woman Syndrome" refers to a scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.(d) "Stalking" refers to an intentional act committed by a person who, knowingly and without lawful justification follows the woman or her child or places the woman or her child under surveillance directly or indirectly or a combination thereof.(e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of marriage or are romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship.(f) "Sexual relations" refers to a single sexual act which may or may not result in the bearing of a common child.(g) "Safe place or shelter" refers to any home or institution maintained or managed by the Department of Social Welfare and Development (DSWD) or by any other agency or voluntary

organization accredited by the DSWD for the purposes of this Act or any other suitable place the resident of which is willing temporarily to receive the victim.(h) "Children" refers to those below eighteen (18) years of age or older but are incapable of taking care of themselves as defined under Republic Act No. 7610. As used in this Act, it includes the biological children of the victim and other children under her care.

Section 26. Battered Woman Syndrome as a Defense. – Victim-survivors who are found by the courts to be suffering from battered woman syndrome do not incur any criminal and civil liability notwithstanding the absence of any of the elements for justifying circumstances of self-defense under the Revised Penal Code.In the determination of the state of mind of the woman who was suffering from battered woman syndrome at the time of the commission of the crime, the courts shall be assisted by expert psychiatrists/ psychologists.

DEFENSE OF HONOR

People vs Luague

Facts: Wenceslao Alcansare and Natividad

Luague were charged with homicide.

Feb 18, 1935:o Wency was out to grind corn

in another house several kilometers away. Natividad was alone in her house with only her three young children accompanying her.

o Paulino Disuasido came and began to make love to Natividad. She protested, but he threatened her with a knife and began to

embrace her and touch her breasts.

o In preparing to lie with her, he left the knife on the floor. Natividad, seeing the opportunity, grabbed the knife and stabbed him in the abdomen.

o Paulino, seeing that he had been wounded, jumped out the window and fell on some stones.

o Natividad immediately went to the poblacion to surrender herself to the authorities and report the incident.

Issue:Does Natividad’s act constitute a self-defense, exempting her from criminal liability?Ruling:Yes. Natividad’s act constitutes self-defense. Wenceslao is acquitted because he had no participation in the act.The attempt to rape a woman constitutes an aggression sufficient to put her in a state of legitimate self-defense

“A woman’s honor cannot but be esteemed as a right as precious, if not more than her very existence”

“It is evident that a woman, who, thus imperiled…kills the offender, should be afforded exemption from criminal liability provided by this article and subsection since such killing cannot be considered a crime from the moment it became the only means left for her to protect her honor from so great an outrage”

Prosecution’s version of the story is improbable

Their version: Wency wanted to kill Paulino because he made unchaste advances on Nati. One day when Paulino was walking with Olimpio Libosada (a friend), they invited them in. This was witnessed by Pablo Alvarez (but he left shortly after so he wasn’t able to witness what happened next). Natividad borrowed Paulino’s knife to “cut her nails”. She asked him where he came from and then used the knife

to stab Paulino in the abdomen. Wenceslao picked up a stone and struck Paulino in the forehead. Paulino fled

The story is unreliable because it’s improbable and contradictory:

o Why did Olimpio not do anything to defend his friend?

o Why would the wife take it upon herself to execute the plan by stabbing Paulino, and not the husband? Won’t it be more “natural” for the husband to punish the offender?

o Why would Alvarez, who testified that he had knowledge that Wenceslao would get even with Paulino at the first opportunity, not do anything to stop the same from happening?

o Why would the spouses who allegedly conspired to kill Paulino not have any weapon in hand to carry out their plans (the knife was gotten from Paulino and the rock was randomly picked from the ground)?

People vs De La Cruz

Facts: Accused was found guilty of homicide for stabbing and killing Rivera. Prosecution claimed that Dela Cruz and Rivera had a relationship and that the accused was madly in love with the deceased and was extremely jealous of another woman with whom Rivera also had a relationship. Dela Cruz claimed, on the other hand, that on her way home one evening, Rivera followed her, embraced and kissed her and touched her private parts. She didn’t know that it was Rivera and that she was unable to resist the strength of Rivera so she got a knife from her pocket and stabbed him in defense of her honor.Held: She is justified in using the pocketknife in repelling what she believed to be an attack upon her honor. It was a

dark night and she could not have identified Rivera. There being no other means of self- defense.

People vs Jaurigue

FACTS: Avelina Jaurigue and Nicolas

Jaurigue, her father, were prosecuted for the crime of murder for which Nicolas was acquitted while Avelina was found guilty of homicide. She appealed to the Court of Appeals for Southern Luzon on June 10, 1944 to completely absolve her of all criminal responsibility for having acted in defense of her honor, to find in her favour additional mitigating circumstances and omit aggravating circumstance.

At about 8:00 PM of September 20, 1942, Amado Capina, deceased victim, went to the chapel of Seventh Day Adventists to attend religious services and sat at the front bench facing the altar. Avelina Jaurigue entered the chapel shortly after the arrival of her father for the same purpose and sat on the bench next to the last one nearest the door. Upon seeing Avelina, Amado went and sat by Avelina’s right side from his seat on the other side of the chapel, and without saying a word, placed his hand on the upper part of her right thigh.

Avelina Jaurigue, therafter, pulled out with her right hand the fan knife which she had in a pocket of her dress with the intention of punishing Amado’s offending hand. Amado seized her right hand but she quickly grabbed the knife on her left hand and stabbed Amado once at the base of the left side of the neck inflicting upon him a wound about 4 ½ inches deep, which is mortal.

Nicolas saw Capina bleeding and staggering towards the altar, and upon seeing his daughter approached her and asked her the reason for her action to which

Avelina replied, “Father, I could not endure anymore”.

Amado Capina died a few minutes after. Barrio lieutenant, Casimiro Lozada was there and Avelina surrendered herself. Lozada advised the Jaurigues to go home immediately for fear of retaliation of Capina’s relatives.

EVENTS PRIOR: One month before that fatal night,

Amado Capina snatched Avelina’s handkerchief bearing her nickname while it was washed by her cousin, Josefa Tapay.

7 days prior to incident (September 13, 1942), Amado approached her and professed his love for her which was refused, and thereupon suddenly embraced and kissed her and touched her breasts. She then slapped him, gave him fist blows and kicked him. She informed her matter about it and since then, she armed herself with a long fan knife whenever she went out.

2 days after (September 15, 1942), Amado climbed up the house of Avelina and entered the room where she was sleeping. She felt her forehead and she immediately screamed for help which awakened her parents and brought them to her side. Amado came out from where he had hidden and kissed the hand of Avelina’s father, Nicolas.

Avelina received information in the morning and again at 5:00 PM on the day of the incident (September 20, 1942) that Amado had been falsely boasting in the neighbourhood of having taken liberties with her person. In the evening, Amado had been courting the latter in vain.

ISSUES: Whether or not the defendant

should be completely absolved of all criminal responsibility because she is justified in having acted in the legitimate defense of her honor.

Whether or not the Court should find the additional mitigating circumstances of voluntary surrender, presence of provocation and absence of intent in her favour

Whether or not committing said offense in a sacred place is an aggravating circumstance in this case

HELD: Conviction of defendant is

sustained and cannot be declared completely exempt from criminal liability. To be entitled to a complete self-defense of chastity, there must be an attempt to rape. To provide for a justifying circumstance of self-defense, there must be a) Unlawful aggression, b) Reasonable necessity of the means employed to prevent or repel it, c) Lack of sufficient provocation on the part of the person defending himself. Attempt to rape is an unlawful aggression. However, under the circumstances of the offense, there was no possibility of the defendant to be raped as they were inside the chapel lighted with electric lights and contained several people. Thrusting at the base of Capino’s neck as her means to repel aggression is not reasonable but is instead, excessive.

Mitigating circumstances are considered in her favour. Circumstances include her voluntary and unconditional surrender to the barrio lieutenant, provocation from the deceased which produced temporary loss of reason and self-control of the defendant and lack of intent to kill the deceased evidenced by infliction of only one single wound.

Aggravating circumstance of having committed offense in a sacred place is not sustained as there is no evidence that the defendant had intended to murder the deceased when she entered the chapel that night. She killed under great provocation.

Penalty: For homicide, penalty is reclusion temporal. However, with 3 mitigating circumstances and no aggravating circumstance, it is reduced by two degrees, in this case, prision correccional. Indeterminate Sentence Law provides the penalty ranging from arresto mayor in its medium degree to prision correccional in its medium degree.

Avelina is sentenced to 2mos and 1 day of arresto mayor as minimum to 2 years, 4 months, and 1 day of prision correccional as maximum; to indemnify heirs of Capina in the sum of 2,000; with corresponding subsidiary imprisonment not to exceed 1/3 of principal penalty and to pay costs. She is given the benefit of ½ of her preventive imprisonment

SEPARATE OPINION: Hilado questions the validity or nullity of judicial proceedings in the Japanese-sponsored courts.

DEFENSE OF PROPERTY

People vs Apolinar

Facts: Midnight of December 22, 1936, the defendant and appellant Anastacio Apolinar alias Atong was at that time the occupant of a parcel of land owned by Joaquin Gonzales in Papallasen, La Paz, Umingan, Pangasinan. Armed with a shotgun, Atong was looking over said land when he observed that there was a man carrying a bundle on his shoulder. Believing that he was a thief (of palay), the defendant called his attention but he ignored him. The defendant fired in the air and then at the person. The man, identified as Domingo Petras, was able to get back to his house and consequently narrated to Angel Natividad, the barrio chief, that he had been wounded in the back by a shotgun. He then showed the two wounds - one in each side of the spinal column - which wounds were circular in form and a little bigger than a quarter of an inch, according tot he medical report of Dr. Mananquil. Petras

died of the wounds he sustained. The defendant surrendered to the authorities immediately after the incident and gave a sworn statement (Exhibit F) before the Justice of Peace of Umingan on December 23, 1936.Issue: WON the killing of Petras was justified by defense of propertyHeld:No; the right to property is not of such importance as right to life, and defense of property can be invoked as a justifying circumstance only when it is coupled with an attack on the person of one entrusted -with said property.

US vs Bumanglag

Facts:

•On the night of January 2, 1909, Rafael Bumanglag noticed that 40 bundles of palay which were kept in his granary were missing. He searched for the missing palay the following morning and found them in an enclosed field which was planted with sugar cane, at a distance of about 100 meters from his granary.

•For the purpose of ascertaining who had done it, he left the palay there, and that night, accompanied by Gregorio Bundoc, Antonio Ribao, and Saturnino Tumamao, he waited near the said field for the person who might return to get the palay.

•Guillermo Ribis appeared and attempted to carry the palay away with him, but at that instant Bumanglag, Bundoc, and Ribao assaulted the presumed thief with sticks and cutting and stabbing weapons; as a result of the struggle which ensued, Ribis fell down and died instantly.

•All the defendants declared that they only beat the deceased with sticks because he had unsheathed the bolo he carried

Issue: Is appellant guilty of the crime of homicide as co-principal by direct participation?

Ruling: Judgement reversed with respect to Bundoc only

Reasoning:

• While the defendants declared that they only beat the deceased with sticks, it appeared that several serious wounds had been inflicted with cutting and stabbing weapons as per the declaration of the health officer Felipe Barba.

•The bolo worn by the deceased was in its sheath and hanging from his waist. It can not be concluded that the deceased even intended to assault his murderers with his bolo either before he was attacked by them or during the fight. Had Ribis made use of the bolo, it would have been found unsheathed at the place where the fight occurred.

•Without unlawful aggression and the other requisites which would exempt the accused from criminal responsibility, the appellant and his two companions assaulted Ribis with sticks and cutting and stabbing arms, inflicting upon him serious and mortal wounds, and therefore, the said accused is guilty of the crime of homicide as co-principal by direct participation, fully convicted, together with his codefendants who are already serving their sentence.

•The court took into account the mitigating circumstance of No. 7, Art. 9 of the Penal Code (which was in effect at that time), because the defendant acted with loss of reason and self-control on seeing that the deceased was taking possession of the palay which was clearly his.

•The special circumstance established by Art. 11 of the same code should also be considered in favor of the accused in view of the erroneous belief that it is legal to punish, even to excess the thief who, while refusing to work, devotes himself to depriving his neighbors of the fruits of their arduous labor.

Dissent by Moreland:•The only proofs relative to the

manner in which Rivis met his death were presented by defendants. Their statements are largely similar: when Bumanglag surprised the thief, the latter attacked him with a bolo which prompted the former to call upon his companions who assisted Bumanglag to protect him

which resulted in the death of Rivis. However, the court refused to believe these statements because 1) the bolo was unsheathed; 2) the sanitary inspector Barba’s testimony states that some of the wounds were made with sharp instruments.

•However, no one watched the body of the deceased during the interval between the time when the death occurred and when the body was first examined. (Therefore, the evidence is not conclusive as to whether the deceased actually used his bolo to attack the defendants.)

•Barba was no qualified expert to determine that certain wounds are caused by sharp objects. He merely stated his conclusions about the wounds without presenting facts from which these would naturally spring.

•It nowhere appears, except from the fact of death itself that the defendants sought or intended to kill the decedent. Their sole purpose appears from the evidence to have been to protect their companion from the murderous assault of the decedent.

On defense of property:•The defendant, Bumanglag was

upon his own land and was, therefore, defending his habitation or property, as well as in defense of his person, against one who manifestly intends by violence or surprise to commit a known felony upon either and, if need be, may kill his adversary.

•While the premises upon which the assault occurred where not the habitation of the defendant, still, as a matter of law, no substantial distinction is made between habitation and premises; for the purposes of self-defense, there is no difference between one’s habitation and his premises.

•There was not only an unlawful aggression against the defendant but also that there was a wrongful invasion of his habitation and an attempt to commit a felony against his property.

•It would seem, under all circumstances that it can not fairly be charged that the defendants, particularly the appellant, acted otherwise than as

reasonable men would have acted in the same situation.

People vs Narvaez

This case is an appeal from the decision of the CFI which convicted the accused of murder qualified by treachery with the aggravating circumstance of evident premeditation offset by the mitigating circumstance of voluntary surrender.

Facts:

•In the afternoon of August 22, 1968, GRACIANO JUAN, JESUS VERANO, CESAR VERANO, CESAR IBANEZ, GEORGE FLEISCHER and FLAVIANO RUBIA were fencing the land of George Fleischer, situated in MAITUM, SOUTH COTABATO. At the place of fencing is the house and rice drier of appellant MAMERTO NARVAEZ.

•At that time appellant was sleeping and was awakened by the sound of the chiseling of the walls of his house. He then arose and saw the fencing. If the fencing continued appellant would be prevented from entering his house and rice mill bodega. So he addressed the group, through Rubia to stop and talk things over (“Pare, if possible you stop destroying my house and if possible we will talk it over - what is good”). To which Fleischer answered no (“No, gademit, proceed, go ahead”) and continued the fencing.

•At this instance, appellant lost his equilibrium and got his gun and shot Fleischer, hitting him. Rubia ran towards the jeep, and knowing that there is a gun on the jeep, appellant fired at Rubia likewise hitting him. Both Fleischer and Rubia died

•The case is intertwined with the long drawn out legal battle between the Fleischer and Co., Inc and the land settlers of Cotabato, among whom was appellant. In brief, the land where the settlers were staying was declared public land which Fleischer won in the bidding.

•On Nov. 14, 1966, appellant was among the settlers who filed in the CFI of Cotabato the civil case to obtain an injunction or annulment of the order of award of land to the company. During the

pendancy of the case, appellant agreed to lease a portion of the land (where his properties were situated) although the ownership of the land was still uncertain. However, appellant failed to pay the agreed rate which prompted Fleisher, et. al. to go through the aforementioned fencing of appellant’s property - which gave rise to the deaths of Fleischer and Rubia.

Issues:

•Did the victims have a right to fence off the contested property, to destroy appellant’s house and to shut off his way in and out of his residence and the highway?

•Was the aggression of Fleischer unlawful? Ruling: Appellant found guilty of two homicides with mitigating circumstances (incomplete self-defense, voluntary surrender and obfuscation).

Reasoning:

•When the incident occurred, the case was still pending in the CFI. The parties could not have known ahead of time who would prevail in the proceedings.

•The court cited Articles 536 and 539 of the Civil Code which stated that in no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto and that every possessor has a right to be respected in his possession.

•In view of the foregoing provisions, the deceased had no right to destroy or cause damage to the appellant’s house. Their actions therefore would amount to unlawful aggression.

•The angry order of Fleischer to continue the fencing would have resulted in the further chiselling of the wall of appellant‘s house as well as the closure of the access to and from his house and rice mill is an aggression against appellant‘s property rights.

•However, when the appellant fired his shotgun from his window, killing his

two victims, his resistance was disproportionate to the attack.

•The third element is also present. There was no provocation on the part of the appellant, since he was asleep at first and was only awakened by the noise produced by the victims and laborers. His plea for the deceased and their men to stop and talk things over with him was no provocation at all.

•Appellant‘s act in killing the deceased was not justifiable, since not all the elements for justification are present.

•Evident premeditation is not present because there is no direct evidence of the planning or preparation to kill the victim.

•Passion and obfuscation attended the crime. The circumstances that appellant discovered upon waking up must have so aggravated his obfuscation that he lost momentarily all reason causing him to reach for his shotgun and fire at his victims in defense of his rights.

•The crime committed is HOMICIDE on two counts mitigated by the privileged extenuating circumstance of incomplete self defense as well as by two generic mitigating circumstances of voluntary surrender and obfuscation. He was sentenced to 4 months of imprisonment and considering that appellant has been under detention for 14 years since his voluntary surrender, his immediate release was ordered.

Separate Opinion of Gutierrez Jr.:

•Defense of property is not of such importance as to the right to life and defense of property can only be invoked when it is coupled with some form of attack on the person of one entrusted with tsaid property.

•There is absolutely no evidence that an attack was attempted, much less made upon the person of appellant. The mere utterance “No, gademit, proceed, go ahead” is not the unlawful aggression which entitles appellant to the plea of self-defense.

Ratio v. 2.0

o Defense of one’s person is treated as justifying circumstance under Art 11 par 1 of RPC. a. 1st requisite: aggression was

on the part of the victimsb. 2nd requisite: by killing the

two victims, appelants’s resistance was disproportionate to the attack.

c. 3rd requisite: ONLY REQUISITE PRESENT. As a matter of fact, there was no provocation on the part of the appellant since his plea for the deceased to stop and talk things over was no provocation at all.

o Appellant’s act of killing was not justifiable since not all elements are present but could be credited with the special mitigating circumstance of incomplete defense pursuant to Art 13 par 6 of RPC.

Entitled to a penalty lower by one or 2 degrees = prision correcional

o The aggravating circumstance of evident premeditation was not sufficiently established.

o There was also the presence of 2 mitigating circumstances: voluntary surrender and passion and obfuscation. (act of chiseling and fencing off)

May further be reduced by 1 degree = arresto mayor

o Civil liability also modified = reduced because the victims contributed to the gravity of appellant’s reaction.

o Article 39 of RPC was applied but enactment of RA 5465 on April 21, 1969 made the provisions of Art 39 applicable to fines only and not to reparation of the damages caused. Considering that RA is

favorable to the accused who is not a habitual delinquent, it must be given retroactive effect (basically abolished subsidiary imprisonment for non-paymen of civil indemnity)

Decision: 4 months of arresto mayor and civil liability of 4000 pesos for the heirs of each of the deceased without subsidiary imprisonment.

DEFENSE OF RELATIVE

United States vs Esmedia

FACTS:

At about 2pm, 24 June 1909, Ciriaco Abando instructed his son, Santiago, to go to a certain place in his rice field to let out the water in order that they could plant rice in the said field. Santiago went to the place designated, and while at work, Gregorio Esmedia appeared on the scene and started a quarrel with Santiago.

Then, Gregorio drew a dagger and stabbed Santiago in the back. Santiago fell to the ground, but arose immediately and attacked Gregorio with his bolo, inflicting several wounds which made Gregorio fall to the ground.

Before this trouble finally terminated, Ponciano and Mena Esmedai(the two accused) and Ciriaco Abando appeared in the vicinity.

Two accused contend that they were working in the rice field nearby, and in seeing Ciriaco and Santiago attacking their father, thay started to the place to render assistance, Ponciano starting first. IN SELF-DEFENSE, knocked them both down using a club(not a bolo according to him). After they had fallen to the ground, Mena arrived.

Prosecution: When the accused saw the fight between their father and Santiago, they rushed to the place and proceeded to kill Santiago and Ciriaco outright.

RESULT: 1. Ciriaco was left dead on the

scene.-wounds on top of his head caused by a cutting instrument 3cm & 8cm length-sustained fracture in the skull by means of a blow-wound on the head 3cm depth, neck 31cm depth 3cm length-left eye was bruised-wound on the palm of his hand 3cm l, 2mm depth

2. Gregorio received fatal wounds from which he died within about 4 hours.

3. Santiago received fatal wounds from which he died 5 days later.

(See pages 262, 263 for details of injuries)

*The theory of the defense that Ponciano was attacked by Ciracio and Santiago is untenable, as the nature of the wounds of the bodies of these two persons show clearly that at least some of them were inflicted by BOLOS, and Ponciano must have used a bolo in the fight, tough he contends he only used a club.*The bolo wounds on the heads of Gregorio and Santiago were such a serious nature that it would have been impossible for them to have gone any distance after having been wounded. They could not have attacked Ponciano after.*Santiago was stabbed at the back by Gregorio but this would was not fatal.

The accused Ponciano received one wound on the head, but it was not of serious nature; Mena on the other hand escaped uninjured.

ISSUE:WON the accused can be exempt

from criminal liability in causing the death of Santiago and Ciracio Abando.

HELD:The two accused are exempt from

criminal liability for having caused the death of Santiago Abando, inasmuch as it

has been shown that they inflicted these wounds upon him in defense of their father who was fatally wounded at that time.

AVOIDANCE OF A GREATER EVIL

People vs Norma Hernandez

Facts of the Case: Vivencio Lascano courted Maria

Norma Hernandez in August 1954 Jan. 6, 1955- Norma accepted

Vivencio and told him to brings his parents to their home so they could talk about their marriage

Feb. 6, 1955- Vivencio brought 12 aunts, 30 chickens, and 3 goats to ask for Norma’s hand in marriage. Parents of both parties agreed to the marriage. Wedding was sent to Mar. 19, 1955 at the Roman Catholic Church in Batangas. They also agreed that Vivencio’s parents would buy a wedding dress, two vestidos, a pair of shoes for the bride, to advance P20 for fetching of sponsors in the wedding, and to repair the roof of Norma’s uncle.

Mar. 11, 1955- without telling anyone else, not even her parents, Norma decide to leave for Mindoro because she never loved Vivencio in the first place and she believed that if the marriage failed, it would be blamed on her for being a girl and not Vivencio.

Mar. 16, 1955- wedding gown was brought to appellant’s house, but since no one was there, the gown was just left in the balcony.

Mar. 19, 1955- they served around 70 guests in the morning because Vivencio’s parents invited Norma’s guests and relatives. Norma was nowhere to be found. She wasn’t able to show up, thereby causing great shame and humiliation to Vivencio and his parents.

Issue:Does Norma’s act of going to Mindoro for the deliberate purpose of preventing the celebration of marriage with complainant because she does not love the latter constitute slander by deed?

Held: NO. Judgement of slander by deed against Norma reversed and appellant is acquitted.

Malice, one of the essential requisites of slander has not been proven.

There is no malice because it cannot be sustained that appellant was motivated by spite or ill-will in deliberately frustrating the marriage. There were no strained relations existing between the complainant and the appellant and her parents before the incident. On the contrary, there always existed good relations between them being neighbors.

In the act done by Norma, there was no malice because in changing her mind, assuming that she was in love with complainant previous to the incident, she was merely exercising her right not to give consent to the marriage after mature consideration, such consent being her prerogative as one of the contracting parties.

She can freely refuse such consent during the actual marriage even if there was previous valid agreement to marry.

If a party to an agreement to marry who backs out should be held liable for the crime of slander by deed, then that would be an inherent way of compelling the party to go into marriage without his or her free consent

Ty vs People

FACTS: Vicky Ty's mother was confined in

the Manila Doctors' Hospital from 30 Oct 1990 until 4 June 1992. She signed the "Acknowledgment of Responsibility for Payment".

Ty's sister was also confined in the same hospital from 13 May 1991 to 2 May 1992.

The total hospital bill amounted to P1,075,592.95.

Ty signed promissory note that she would pay in installments.

She drew 7 postdated checks, all worth 30k, against Metrobank. All were dishonored by the bank due to insufficiency of funds.

Despite demand letters from hospital to Ty, she did not pay the debt.

Ty alleges that she only issued the chcecks because of "an uncontrollable fear of a greater injury," as the hospital was maltreating the patient.

ISSUE:Is the defense of uncontrollable fear tenable to warrant exemption from criminal liability?

RULING: DENIED 3 requisites for the exempting

circumstance: (1) existence of an uncontrollable fear; (2) fear must be real and imminent; (3) fear of an injury is greater than or at least equal to that committed

Mere threat of injury is not enough. It should not be fanciful, speculative, remote.

No evidence that mother's illness was so life-threatening.

Ty did not take advantage of the many opportunities available to her to avoid committing a crime.

No evidence to corroborate her claim that she was compelled/coerced to cooperate with hospital's demands.

Does not fall under justifying circumstance under Art 11 of RPC either.1. Evil sought to be avoided

actually exists - evil is merely speculative

2. Injury feared must be greater than the one done to avoid it

3. There must be no other practical means and less harmful means of preventing it

- she could have given jewelry or other forms of security

FULFILLMENT OF DUTY

FACTS: Delima was a police officer who

was looking for escaped convict Lorenzo Napilon.

Delima found Napilon in the house of Jorge Alegria armed with a pointed piece of bamboo in the shape of a lance.

Delima demanded Napilon's surrender but Napilon attacked instead. Delima was able to dodge. Delima fired his revolver but did not hit Napilon.

Napilon ran away with the weapon. Delima pursued him and fired again, this time hitting and killing him.

ISSUE:Is Delima criminally liable?

RULING: JUDGMENT REVERSEDno

Delima was performing his duty as a police officer to bring an escaped convict back into custody. Napilon was under obligation to surrender.

Napilon's use of the bamboo as a weapon compelled Delima to resort to extreme means which, although fatal, was justified by the circumstances.

People vs Belbes

Facts:- Domingo Belbes and Jose Pabon

were assigned by their station commander to maintain peace and order at the JS prom of Pili barangay HS.

- 9:00pm, the teacher in charge were approached by 2 students informing her that there was someone making trouble. The 2

patrolmen responded to the said incident.

- Fernando Bataller a senior at the HS, drunk and with the company of his 2 friends was vomiting and holding on to the bamboo fence of the school’s temp bldg. the bamboo splits broke and at this instance pabon and Belbes appeared and without warning fired his gun. Bataller fell to the ground, the 2 patrolmen fled and Bataller was pronounced DOA. Autopsy report states that bataller suffered the ff wounds:

o Head, located at the right lower face, skin, muscles, blood vessels, nerves, bone torn away

o Chest(front located at left, antero lateral approx.. 5 cm below but lateral to the left nipple, another gunshot wound at left lateral waistline

o Chest(back) located at the middle back at the level of the lowest rib, skin and superficial muscles torn away, another gunshot wound located at the left back lateral level of the lowest rib

- Defendant’s version: Bataller was destroying the bamboo splits, drunk but being prevailed upon by his friends. He was not vomiting but he smelled of wine. Upon introducing themselves as patrolmen, Fernando did not mind them but instead, tried to stab Pabon but was able to step back and after 2 knife thrusts, Pabon retreated (the account said deceased stabbed Pabon and then said he was not hit, labo). Belbes was stabbed by Bataller and was hit on the lower left shoulder. Belbes held his hand but he was able to free himself and tried to stab Belbes again, he made a warning shot. Bataller grabbed the firearm and his 2 friends started to get aggressive. During the process of grappling for the firearm, it went

off and Fernando fell to the ground. He took the knife from Bataller’s hand and asked the people to bring Bataller to the hospital. They proceeded to the police station and turned over the knife to the desk officer which is now with the provincial command.

- Pabon corroborated the testimony except that there was no warning shot and failed to mention the aggression of the friends.

- The trial court found the defense weak and held that the evidence of the prosecution sufficient. The court convicted Belbes of murder and sentenced to reclusion perpetua.

Issue: Was the Trial court correct in holding accused appellant guilty of murder?Held: No. Belbes is not guilty of murder but of homicide, with mitigating circumstance of incomplete justifying circumstance of fulfillment of duty.

- Defendant claims that he was only performing his official functions when he responded to the incident, there were 2 students that reported an incident, they went to check the veracity of the statements. He had no intent and voluntariness; he cannot be faulted for the death of the deceased.

- He also questions the credibility of the cousin who was one of the 2 who were with Bataller that night, saying that since he is a relative he has every intention falsely testify against him. But the positive and clear testimony of a witness is sufficient to sustain a judgment of conviction also the trial court finding should be respected here since they were able to observe the demeanor of the witness (tc admitted the testimony and was used to convict him).

- Burden of evidence to prove that the killing was done in self-defense should be on the accused, he cannot rely on the weakness of the prosecution but on the strength of his own evidence. Even if the evidence of the prosecution were it

could not be disbelieved after the accused himself had admitted the killing (when he claimed that he did it on self-defense).

- The inconsistency between the testimony of Belbes and the facts are as follows: he claims that he was stabbed but was only medically examined after 21 hours of the alleged stabbing (possibly self-inflicted). Also, he said that he and the deceased were grappling for the firearm yet the wounds suggest that he was hit sideways (wounds at the front and back of the body). Also, it only took about 6 seconds after the teacher asked them to respond to the incident until they heard gunshots.

- Art. 11 (5) states that a person incurs no criminal liability if the crime was done in the fulfillment of a duty or in the lawful exercise of a right or office. This has 2 requisites: (1) lawful exercise of a duty and (2) the injury or offense committed the necessary consequence of the due performance of his duty. In this case the 2nd requisite is lacking.

- There was no treachery since the 2 requirements for this circumstance are: (1) done to ensure safety on the part of the accused and gave no chance to the offended person to defend himself and (2) the means, method or manner of execution were deliberately or consciously adopted by the offender.

- Not reckless imprudence since the gunshots were directly aimed at the deceased

- Decision: decision modified, appellant found guilty of homicide and sentenced to an indeterminate penalty of 9 yrs of prision mayor to 14 yrs reclusion temporal. Also ordered to pay the heirs of the victim the amount of 50,000 as civil indemnity and 20,000 as moral damages.

LAWFUL ORDER OF A SUPERIOR

People vs Beronilla

Facts:Appeal by accused from CFI conviction of murder for execution of Arsenio Borjal in the evening of April 18, 1945 in La Paz, Abra. Borjal was elected mayor of La Paz, at the outbreak of war, continued to serve during the Japanese occupation, until March 10, 1943, when he moved because of an attempt on his life. On December 18, 1944, accused was appointed Military Mayor of La Paz. He received a memo authorizing him to appoint a jury of 1 bolomen to try those accused of crimes against the State, and a list of all puppet government officials (including Borjal) instructing him to investigate said persons. In March 1945, Borjal returned to La Paz to escape bombing of Bangued, and so he was placed under custody. Borjal was found guilty. Headquarters said “whatever disposition you make is hereby approved.” That night, accused ordered the execution of Borjal. 2 years later, accused were indicted in the CFI of Abra for murder. Thereafter, PRoxas issued a Proclamation granting amnesty to all persons who committed acts penalized under RPC in furtherance of resistance to the enemy against persons aiding war efforts of enemy. CFI convicted Beronilla as conspirator and co-principal for murder (crime fell with Proclamation, but no benefit because Borjal was executed after liberation).

Issue:Whether or not accused was guilty of murder.

Held:No. Arrest, prosecution, and trial of Borjal pursuant to express orders of headquarters, or higher command. But a radiogram from the area commander calling attention to the illegality of Borjal’s conviction and sentence, which prosecution claimed was known to accused, was found. The message said that the jury was illegal and could not try or punish Beronilla. Obviously, if the Volckmann message was known to Beronilla, his ordering the execution of Borjal on the night of April 18, 1945 can not be justified. Evidence finds no

satisfactory proof that Beronilla actually received the radiogram or any copy thereof, for only Beronilla’s bodyguard, relative of Borjal, claimed to have seen him read the letter “over his shoulder.” Such witness failed to mention it in his affidavit. The affidavit only stated that the bodyguard was not with Beronilla when the message “arrived.” Also, had Beronilla executed Borjal in violation of superior orders, he would not have reported it, as he did after. The message was not transmitted. It appearing that the charge is the heinous crime of murder, and that the accused-appellants acted upon orders, of a superior officers that they, as military subordinates, could not question, and obeyed in good faith, without being aware of their illegality, without any fault or negligence on their part, we can not say that criminal intent has been established.