G.R. No.

L-5272
March 19, 1910
THE UNITED STATES, plaintiff-appellee,
vs.
AH CHONG, defendant-appellant.
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 Ibaez, 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.

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:

Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary acts and ommissions punished by

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.
Separate Opinions
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority of the court,

believes that, according to the merits of the case, the crime of homicide by
reckless negligence, defined and punishes in article 568 of the Penal Code,
was committed, inasmuch as the victim was wilfully (voluntariomente)
killed, and while the act was done without malice or criminal intent it was,
however, executed with real negligence, for the acts committed by the
deceased could not warrant the aggression by the defendant under the
erroneous belief on the part of the accused that the person who assaulted
him was a malefactor; the defendant therefore incurred responsibility in
attacking with a knife the person who was accustomed to enter said room,
without any justifiable motive.
By reason of the nature of the crime committed, in the opinion of the
undersigned the accused should be sentenced to the penalty of one year
and one month of prision correctional, to suffer the accessory penalties
provided in article 61, and to pay an indemnify of P1,000 to the heirs of the
deceased, with the costs of both instances, thereby reversing the judgment
appealed from.