G.R. No.

L-5272

March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in this case is limited
to the testimony of the accused himself, because from the very nature of these
facts and from the circumstances surrounding the incident upon which these
proceedings rest, no other evidence as to these facts was available either to
the prosecution or to the defense. We think, however, that, giving the accused
the benefit of the doubt as to the weight of the evidence touching those details
of the incident as to which there can be said to be any doubt, the following
statement of the material facts disclose by the record may be taken to be
substantially correct:
The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No.
27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto,
deceased, was employed as a house boy or muchacho. "Officers' quarters
No. 27" as a detached house situates some 40 meters from the nearest
building, and in August, 19087, was occupied solely as an officers' mess or
club. No one slept in the house except the two servants, who jointly occupied
a small room toward the rear of the building, the door of which opened upon a
narrow porch running along the side of the building, by which communication
was had with the other part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of the room was not
furnished with a permanent bolt or lock, and occupants, as a measure of
security, had attached a small hook or catch on the inside of the door, and
were in the habit of reinforcing this somewhat insecure means of fastening the
door by placing against it a chair. In the room there was but one small window,
which, like the door, opened on the porch. Aside from the door and window,
there were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the defendant, who had
received for the night, was suddenly awakened by some trying to force open
the door of the room. He sat up in bed and called out twice, "Who is there?"
He heard no answer and was convinced by the noise at the door that it was
being pushed open by someone bent upon forcing his way into the room. Due
to the heavy growth of vines along the front of the porch, the room was very
dark, and the defendant, fearing that the intruder was a robber or a thief,
leaped to his feet and called out. "If you enter the room, I will kill you." At that
moment he was struck just above the knee by the edge of the chair which had

been placed against the door. In the darkness and confusion the defendant
thought that the blow had been inflicted by the person who had forced the
door open, whom he supposed to be a burglar, though in the light of after
events, it is probable that the chair was merely thrown back into the room by
the sudden opening of the door against which it rested. Seizing a common
kitchen knife which he kept under his pillow, the defendant struck out wildly at
the intruder who, it afterwards turned out, was his roommate, Pascual.
Pascual ran out upon the porch and fell down on the steps in a desperately
wounded condition, followed by the defendant, who immediately recognized
him in the moonlight. Seeing that Pascual was wounded, he called to his
employers who slept in the next house, No. 28, and ran back to his room to
secure bandages to bind up Pascual's wounds.
There had been several robberies in Fort McKinley not long prior to the date of
the incident just described, one of which took place in a house in which the
defendant was employed as cook; and as defendant alleges, it was because
of these repeated robberies he kept a knife under his pillow for his personal
protection.
The deceased and the accused, who roomed together and who appear to
have on friendly and amicable terms prior to the fatal incident, had an
understanding that when either returned at night, he should knock at the door
and acquiant his companion with his identity. Pascual had left the house early
in the evening and gone for a walk with his friends, Celestino Quiambao and
Mariano 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.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and ommissions punished
by law.
Acts and omissions punished by law are always presumed to be
voluntarily unless the contrary shall appear.
An person voluntarily committing a crime or misdemeanor shall incur
criminal liability, even though the wrongful act committed be different
from that which he had intended to commit.
The celebrated Spanish jurist Pacheco, discussing the meaning of the word
"voluntary" as used in this article, say that a voluntary act is a free, intelligent,
and intentional act, and roundly asserts that without intention (intention to do
wrong or criminal intention) there can be no crime; and that the word
"voluntary" implies and includes the words "con malicia," which were
expressly set out in the definition of the word "crime" in the code of 1822, but
omitted from the code of 1870, because, as Pacheco insists, their use in the
former code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to commit the crime can
only be said to exempt from criminal responsibility when the act which was
actually intended to be done was in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits and recognizes in his
discussion of the provisions of this article of the code that in general without

intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we have shown
above, the exceptions insisted upon by Viada are more apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article, which declared that
where there is no intention there is no crime . . . in order to affirm,
without fear of mistake, that under our code there can be no crime if
there is no act, an act which must fall within the sphere of ethics if there
is no moral injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme court of Spain,
as, for example in its sentence of May 31, 1882, in which it made use of the
following language:
It is necessary that this act, in order to constitute a crime, involve all the
malice which is supposed from the operation of the will and an intent to
cause the injury which may be the object of the crime.
And again in its sentence of March 16, 1892, wherein it held that "considering
that, whatever may be the civil effects of the inscription of his three sons,
made by the appellant in the civil registry and in the parochial church, there
can be no crime because of the lack of the necessary element or criminal
intention, which characterizes every action or ommission punished by law; nor
is he guilty of criminal negligence."
And to the same effect in its sentence of December 30, 1896, it made use of
the following language:
. . . Considering that the moral element of the crime, that is, intent or
malice or their absence in the commission of an act defined and
punished by law as criminal, is not a necessary question of fact
submitted to the exclusive judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or malice to be an
essential element of the various crimes and misdemeanors therein defined
becomes clear also from an examination of the provisions of article 568, which
are as follows:
He who shall execute through reckless negligence an act that, if done
with malice, would constitute a grave crime, shall be punished with the
penalty of arresto mayor in its maximum degree, to prision
correccional in its minimum degrees if it shall constitute a less grave
crime.

He who in violation of the regulations shall commit a crime through

simple imprudence or negligence shall incur the penalty of arresto
mayor in its medium and maximum degrees.
In the application of these penalties the courts shall proceed according
to their discretion, without being subject to the rules prescribed in article
81.
The provisions of this article shall not be applicable if the penalty
prescribed for the crime is equal to or less than those contained in the
first paragraph thereof, in which case the courts shall apply the next one
thereto in the degree which they may consider proper.
The word "malice" in this article is manifestly substantially equivalent to the
words "criminal intent," and the direct inference from its provisions is that the
commission of the acts contemplated therein, in the absence of malice
(criminal intent), negligence, and imprudence, does not impose any criminal
liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code would seem to
approximate in meaning the word "willful" as used in English and American
statute to designate a form of criminal intent. It has been said that while the
word "willful" sometimes means little more than intentionally or designedly, yet
it is more frequently understood to extent a little further and approximate the
idea of the milder kind of legal malice; that is, it signifies an evil intent without
justifiable excuse. In one case it was said to mean, as employed in a statute in
contemplation, "wantonly" or "causelessly;" in another, "without reasonable
grounds to believe the thing lawful." And Shaw, C. J., once said that ordinarily
in a statute it means "not merely `voluntarily' but with a bad purpose; in other
words, corruptly." In English and the American statutes defining crimes
"malice," "malicious," "maliciously," and "malice aforethought" are words
indicating intent, more purely technical than "willful" or willfully," but "the
difference between them is not great;" the word "malice" not often being
understood to require general malevolence toward a particular individual, and
signifying rather the intent from our legal justification. (Bishop's New Criminal
Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute, setting out a condition
in the definition of a crime that it be committed "voluntarily," willfully,"
"maliciously" "with malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that reasoning from
general principles it will always be found that with the rare exceptions
hereinafter mentioned, to constitute a crime evil intent must combine with an
act. Mr. Bishop, who supports his position with numerous citations from the
decided cases, thus forcely present this doctrine:

In no one thing does criminal jurisprudence differ more from civil than in
the rule as to the intent. In controversies between private parties
the quo animo with which a thing was done is sometimes important, not
always; but crime proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil mind. In other
words, punishment is the sentence of wickedness, without which it can
not be. And neither in philosophical speculation nor in religious or mortal
sentiment would any people in any age allow that a man should be
deemed guilty unless his mind was so. It is therefore a principle of our
legal system, as probably it is of every other, that the essence of an
offense is the wrongful intent, without which it can not exists. We find
this doctrine confirmed by
Legal maxims. The ancient wisdom of the law, equally with the
modern, is distinct on this subject. It consequently has supplied to us
such maxims as Actus non facit reum nisi mens sit rea, "the act itself
does not make man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my will is not my
act;" and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same thing. "By reference
to the intention, we inculpate or exculpate others or ourselves without
any respect to the happiness or misery actually produced. Let the result
of an action be what it may, we hold a man guilty simply on the ground
of intention; or, on the dame ground, we hold him innocent." The calm
judgment of mankind keeps this doctrine among its jewels. In times of
excitement, when vengeance takes the place of justice, every guard
around the innocent is cast down. But with the return of reason comes
the public voice that where the mind is pure, he who differs in act from
his neighbors does not offend. And
In the spontaneous judgment which springs from the nature given by
God to man, no one deems another to deserve punishment for what he
did from an upright mind, destitute of every form of evil. And whenever a
person is made to suffer a punishment which the community deems not
his due, so far from its placing an evil mark upon him, it elevates him to
the seat of the martyr. Even infancy itself spontaneously pleads the
want of bad intent in justification of what has the appearance of wrong,
with the utmost confidence that the plea, if its truth is credited, will be
accepted as good. Now these facts are only the voice of nature uttering
one of her immutable truths. It is, then, the doctrine of the law, superior
to all other doctrines, because first in nature from which the law itself
proceeds, that no man is to be punished as a criminal unless his intent
is wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an apparent

departure from this doctrine of abstract justice result from the adoption of the
arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses
no man"), without which justice could not be administered in our tribunals; and
compelled also by the same doctrine of necessity, the courts have recognized
the power of the legislature to forbid, in a limited class of cases, the doing of
certain acts, and to make their commission criminal without regard to the
intent of the doer. Without discussing these exceptional cases at length, it is
sufficient here to say that the courts have always held that unless the intention
of the lawmaker to make the commission of certain acts criminal without
regard to the intent of the doer is clear and beyond question the statute will
not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76 and 77);
and the rule that ignorance of the law excuses no man has been said not to be
a real departure from the law's fundamental principle that crime exists only
where the mind is at fault, because "the evil purpose need not be to break the
law, and if suffices if it is simply to do the thing which the law in fact forbids."
(Bishop's New Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no pressing
necessity therefore, requiring mistake in fact to be dealt with otherwise that in
strict accord with the principles of abstract justice. On the contrary, the maxim
here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is, in all
cases of supposed offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed.,
190.)
Since evil intent is in general an inseparable element in every crime, any such
mistake of fact as shows the act committed to have proceeded from no sort of
evil in the mind necessarily relieves the actor from criminal liability provided
always there is no fault or negligence on his part; and as laid down by Baron
Parke, "The guilt of the accused must depend on the circumstances as they
appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P. vs.Anderson, 44 Cal..,
65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y., 509; Patterson vs. P., 46
Barb., 625; Reg. vs. Cohen, 8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209;
Nalley vs. S., 28 Tex. Ap., 387.) That is to say, the question as to whether he
honestly, in good faith, and without fault or negligence fell into the mistake is
to be determined by the circumstances as they appeared to him at the time
when the mistake was made, and the effect which the surrounding
circumstances might reasonably be expected to have on his mind, in forming
the intent, criminal or other wise, upon which he acted.
If, in language not uncommon in the cases, one has reasonable cause
to believe the existence of facts which will justify a killing or, in terms
more nicely in accord with the principles on which the rule is founded, if
without fault or carelessness he does believe them he is legally
guiltless of the homicide; though he mistook the facts, and so the life of
an innocent person is unfortunately extinguished. In other words, and

with reference to the right of self-defense and the not quite harmonious
authorities, it is the doctrine of reason and sufficiently sustained in
adjudication, that notwithstanding some decisions apparently adverse,
whenever a man undertakes self-defense, he is justified in acting on the
facts as they appear to him. If, without fault or carelessness, he is
misled concerning them, and defends himself correctly according to
what he thus supposes the facts to be the law will not punish him
though they are in truth otherwise, and he was really no occassion for
the extreme measures. (Bishop's New Criminal Law, sec. 305, and large
array of cases there cited.)
The common illustration in the American and English textbooks of the
application of this rule is the case where a man, masked and disguised as a
footpad, at night and on a lonely road, "holds up" his friends in a spirit of
mischief, and with leveled pistol demands his money or his life, but is killed by
his friend under the mistaken belief that the attack is a real one, that the pistol
leveled at his head is loaded, and that his life and property are in imminent
danger at the hands of the aggressor. No one will doubt that if the facts were
such as the slayer believed them to be he would be innocent of the
commission of any crime and wholly exempt from criminal liability, although if
he knew the real state of the facts when he took the life of his friend he would
undoubtedly be guilty of the crime of homicide or assassination. Under such
circumstances, proof of his innocent mistake of the facts overcomes the
presumption of malice or criminal intent, and (since malice or criminal intent is
a necessary ingredient of the "act punished by law" in cases of homicide or
assassination) overcomes at the same time the presumption established in
article 1 of the code, that the "act punished by law" was committed
"voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for believing that the person
slain had a felonious design against him, and under that supposition
killed him, although it should afterwards appear that there was no such
design, it will not be murder, but it will be either manslaughter or
excusable homicide, according to the degree of caution used and the
probable grounds of such belief. (Charge to the grand jury in Selfridge's
case, Whart, Hom., 417, 418, Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the doctrine as
follows:
A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward
him, with an outstretched arms and a pistol in his hand, and using
violent menaces against his life as he advances. Having approached
near enough in the same attitude, A, who has a club in his hand, strikes
B over the head before or at the instant the pistol is discharged; and of

the wound B dies. It turns out the pistol was loaded with powder only,
and that the real design of B was only to terrify A. Will any reasonable
man say that A is more criminal that he would have been if there had
been a bullet in the pistol? Those who hold such doctrine must require
that a man so attacked must, before he strikes the assailant, stop and
ascertain how the pistol is loaded a doctrine which would entirely
take away the essential right of self-defense. And when it is considered
that the jury who try the cause, and not the party killing, are to judge of
the reasonable grounds of his apprehension, no danger can be
supposed to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme court of Spain, cited
by Viada, a few of which are here set out in full because the facts are
somewhat analogous to those in the case at bar.
QUESTION III. When it is shown that the accused was sitting at his
hearth, at night, in company only of his wife, without other light than
reflected from the fire, and that the man with his back to the door was
attending to the fire, there suddenly entered a person whom he did not
see or know, who struck him one or two blows, producing a contusion
on the shoulder, because of which he turned, seized the person and
took from his the stick with which he had undoubtedly been struck, and
gave the unknown person a blow, knocking him to the floor, and
afterwards striking him another blow on the head, leaving the unknown
lying on the floor, and left the house. It turned out the unknown person
was his father-in-law, to whom he rendered assistance as soon as he
learned his identity, and who died in about six days in consequence of
cerebral congestion resulting from the blow. The accused, who
confessed the facts, had always sustained pleasant relations with his
father-in-law, whom he visited during his sickness, demonstrating great
grief over the occurrence. Shall he be considered free from criminal
responsibility, as having acted in self-defense, with all the
circumstances related in paragraph 4, article 8, of the Penal Code? The
criminal branch of the Audiencia of Valladolid found that he was an
illegal aggressor, without sufficient provocation, and that there did not
exists rational necessity for the employment of the force used, and in
accordance with articles 419 and 87 of the Penal Code condemned him
to twenty months of imprisonment, with accessory penalty and costs.
Upon appeal by the accused, he was acquitted by the supreme court,
under the following sentence: "Considering, from the facts found by the
sentence to have been proven, that the accused was surprised from
behind, at night, in his house beside his wife who was nursing her child,
was attacked, struck, and beaten, without being able to distinguish with
which they might have executed their criminal intent, because of the
there was no other than fire light in the room, and considering that in
such a situation and when the acts executed demonstrated that they

might endanger his existence, and possibly that of his wife and child,
more especially because his assailant was unknown, he should have
defended himself, and in doing so with the same stick with which he
was attacked, he did not exceed the limits of self-defense, nor did he
use means which were not rationally necessary, particularly because
the instrument with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the darkness of
the house and the consteration which naturally resulted from such
strong aggression, it was not given him to known or distinguish whether
there was one or more assailants, nor the arms which they might bear,
not that which they might accomplish, and considering that the lower
court did not find from the accepted facts that there existed rational
necessity for the means employed, and that it did not apply paragraph 4
of article 8 of the Penal Code, it erred, etc." (Sentence of supreme court
of Spain, February 28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house, which was
situated in a retired part of the city, upon arriving at a point where there
was no light, heard the voice of a man, at a distance of some 8 paces,
saying: "Face down, hand over you money!" because of which, and
almost at the same money, he fired two shots from his pistol,
distinguishing immediately the voice of one of his friends (who had
before simulated a different voice) saying, "Oh! they have killed me,"
and hastening to his assistance, finding the body lying upon the ground,
he cried, "Miguel, Miguel, speak, for God's sake, or I am ruined,"
realizing that he had been the victim of a joke, and not receiving a reply,
and observing that his friend was a corpse, he retired from the place.
Shall he be declared exempt in toto from responsibility as the author of
this homicide, as having acted in just self-defense under the
circumstances defined in paragraph 4, article 8, Penal Code? The
criminal branch of the Audiencia of Malaga did not so find, but only
found in favor of the accused two of the requisites of said article, but not
that of the reasonableness of the means employed to repel the attack,
and, therefore, condemned the accused to eight years and one day
of prison mayor, etc. The supreme court acquitted the accused on his
appeal from this sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of the person
calling to him, and that under the circumstances, the darkness and
remoteness, etc., the means employed were rational and the shooting
justifiable. (Sentence supreme court, March 17, 1885.) (Viada, Vol. I, p.
136.)
QUESTION VI. The owner of a mill, situated in a remote spot, is
awakened, at night, by a large stone thrown against his window at
this, he puts his head out of the window and inquires what is wanted,
and is answered "the delivery of all of his money, otherwise his house

would be burned" because of which, and observing in an alley

adjacent to the mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the next morning
was found dead on the same spot. Shall this man be declared exempt
from criminal responsibility as having acted in just self-defense with all
of the requisites of law? The criminal branch of the requisites of law?
The criminal branch of the Audiencia of Zaragoza finds that there
existed in favor of the accused a majority of the requisites to exempt
him from criminal responsibility, but not that of reasonable necessity for
the means, employed, and condemned the accused to twelve months
of prision correctional for the homicide committed. Upon appeal, the
supreme court acquitted the condemned, finding that the accused, in
firing at the malefactors, who attack his mill at night in a remote spot by
threatening robbery and incendiarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23, 1877). (I Viada,
p. 128.)
A careful examination of the facts as disclosed in the case at bar convinces us
that the defendant Chinaman struck the fatal blow alleged in the information in
the firm belief that the intruder who forced open the door of his sleeping room
was a thief, from whose assault he was in imminent peril, both of his life and
of his property and of the property committed to his charge; that in view of all
the circumstances, as they must have presented themselves to the defendant
at the time, he acted in good faith, without malice, or criminal intent, in the
belief that he was doing no more than exercising his legitimate right of selfdefense; 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.