DECISION
G.R. No. L-24978 March 27, 1926
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FERNANDO DE FERNANDO, defendant-appellant.
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
FERNANDO DE FERNANDO, defendant-appellant.
W. A. Armstrong for appellant.
Attorney-General Jaranilla for appellee.
Attorney-General Jaranilla for appellee.
Villareal, J.:
This appeal has been taken by the defendant Fernando de
Fernando from the judgment of the Court of First Instance of Zamboanga, in which he was held guilty of
the crime of murder and sentenced to suffer the penalty of twenty years cadena
temporal, to indemnify the heirs of the deceased Buenventura Paulino
in the sum of P1,000 and to pay the costs, by virtue of a complaint filed by
the fiscal charging with the said crime.
As a basis for his appeal the accused assigns the following
errors as committed by the trial court: (1) in holding that the acts committed
by the accused constituted the crime for murder; (2) in not holding that the
accused was exempt from criminal liability and in not acquitting him.
At the trial the following facts were proven beyond a
reasonable doubt: Before
the day of the crime several Moro prisoners had escaped from the Penal Colony
of San Ramon, Zamboanga. The residents of the barrio of
Municahan of the municipality of Zamboanga were alarmed by the presence of
three suspicious looking persons who were prowling around the place. The
accused Fernando de Fernando who, at that time, was a municipal policeman, when
passing in front of the house of one Remigio Delgado, was called by the
latter’s daughter Paciencia Delgado, who stated that her father wished to see
him. When the
policeman came up the house Remigio Delgado informed him that three unknown and
suspicious looking persons, dressed in blue, prowling around his house. The
accused remained in the said house talking with Paciencia Delgado, both being seated
on a bench near the window. While they were thus talking, at about 7 o’clock at
night, there appeared in the dark, at about 4 meters from the stairs, a person
dressed in dark clothes, calling “Nong Miong.” At the time the accused nor
Paciencia Delgado knew who was thus calling. The accused inquired what he
wanted but instead of answering he continued advancing with bolo in hand. Upon
seeing this Fernando de Fernando took out his revolver and fired a shot in the
air. As he saw that the unknown continued to ascend the staircase he fired at
him. The unknown disappeared and ran to the house of a neighbor Leon Torres,
where, after placing upon a table the bolos that he carried,
he fell on the floor and expired. Remigio Delgado, who was in the kitchen and
had recognized the voice of the unknown, on hearing the shots ran into the
parlor, took hold of the arm of the defendant and asked him why he had fired at
Buenventura Paulino. Fernando de Fernando only said “Let me go, that is a cross
eyed person” and immediately repaired to the house of the teniente of the barrio,
Santiago Torres, from where he telephoned to the chief of police advising him
of what had happened. When the body was examined it was found that a bullet had
penetrated the base of the neck at the right, imbedding itself in the left side
under the skin.
The status of the accused on the night in question was that
of an agent of the law, to whom notice had been given of the presence of
suspicious looking persons who might be the Moro prisoners who had escaped from
the Penal Colony of San Ramon. The appearance of a man, unknown to him, dressed
in clothes similar in color to the prisoner’s uniform who was calling the owner
of the house, and the silence of Paciencia Delgado, who did not at the time
recognize the man, undoubtedly caused the accused to suspect that the unknown
man was one of the three persons that the owner of the house said were prowling
around the place. The suspicion become a reality in his mind when he saw that
the man continued ascending the stairs with a bolo in his hand, not heeding his
question as to who he was. In the midst of these circumstances and believing
undoubtedly that he was a wrongdoer he tried to perform his duty and first
fired into the air and then at the alleged intruder. But it happened that what
to him appeared to be wrongdoer
was the nephew of the owner of the house who was carrying three bolos tied
together. At that psychological moment when the forces of far and the
sense of duty were at odds, the accused was not able to take full account of
the true situation and the bundle of bolos seemed to him to be
only one bolo in the hands of a suspicious character who intended to enter the
house. There is, however, a circumstance that should have made him suspect that
the man was not only a friend but also a relative of the owner of the house
from the fact he called “Nong
Miong,” which indicated that the owner of the house might be an older relative
of the one calling, or an intimate friend; and in not asking Paciencia Delgado
who was it was that was calling her father with such familiarity, he did not
use the ordinary precaution that he should have used before taking such fatal
action.
Taking into consideration the estate of mind of the accused
at the time, and the meaning that he gave to the attitude of the unknown
person, in shooting the latter he felt that he was performing his duty by
defending the owners of the house against an unexpected attack, and such act
cannot constitute the crime of murder, but only that of simple homicide. He cannot be held guilty,
however, as principal with malicious intent, because he though at the time that
he was justified in acting as he did, and he is guilty only because he failed
to exercise the ordinary diligence which, under the circumstances, he should
have by investigating whether or not the unknown man was really what he though
him to be. In firing the shot, without first exercising reasonable diligence,
he acted with reckless negligence.
The crime committed by the caused, therefore, is homicide through reckless
negligence defined and punished in article 568, in relation with article 404,
of the Penal Code, the penalty prescribed by lawarresto mayor in
its maximum degree to prision correcional in its minimum degree.
In view of the foregoing and reversing the appealed judgment, the accused is held
guilty of the crime of homicide through reckless negligence, and he is
sentenced to suffer one year prision correcional, to pay the amount of P500 to
the heirs of the deceased as an indemnity, with subsidiary imprisonment in case
of insolvency, the costs and with credit of one-half of the preventive
imprisonment already suffered. So ordered.
Avanceña, C. J., Street, Malcom, Villamor, Ostrand, Johns
and Romualdez, JJ., concur.
