EN BANC

G.R. No. L-38773 December 19, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee,

vs. GINES ALBURQUERQUE Y SANCHEZ, Defendant-Appellant.

Gibbs and McDonough and Roman Ozaeta, for appellant.

Office of the Solicitor-General Hilado for appellee.

AVANCEÑA, C.J.: chanro bles vi rtua l law lib ra ry

The judgment appealed from finds the appellants Gines

Alburquerque guilty of the crime of homicide committed on the
person of Manuel Osma and sentences him to eight years and one
day of prision mayor, and to indemnify the heirs of the deceased in
the sum of P1,000, with costs. chanroble svi rtualawl ib rary chan rob les vi rtual law lib ra ry

The appellant herein, who is a widower of fifty-five years of age and

father of nine living children, has been suffering from partial
paralysis for some time, walks dragging one leg and has lost control
of the movement of his right arm. He has been unable to work since
he suffered the stroke of paralysis. One of his daughters was named
Maria and another, are married, while still another one is a nun.
With the exemption of the other married daughter and the nun, of
all of them, including the appellant, live with Maria upon whom they
depend for support. chanroble svirtualawl ibra ry chan roble s virtual law lib rary

Among the daughters living with Maria, one named Pilar became
acquainted and had intimate relations later with the deceased
Manuel Osma about the end of the year 1928. It was then that the
appellant became acquainted with the deceased who frequently
visited Pilar in his house. The relations between Pilar and the
deceased culminated in Pilar's giving birth to a child. The appellant
did not know that his daughter's relations with the deceased had
gone to such extremes, that he had to be deceived with the
information that she had gone to her godfather's house in
Singalong, when in fact she had been taken to the Chinese Hospital
for delivery. The appellant learned the truth only when Pilar
returned home with her child. chan roble svi rtualawl ib rary chan rob les vi rtual law lib rary

Naturally the appellant was deeply affected by this incident, since

which time he has appeared sad and worried not only because of
the dishonor it brought upon his family but also because the child
meant an added burden to Maria upon whom they all depended for
support. For some time the appellant wrote letters, that at times
were hostile and threatening and at other times entreating the
deceased to legitimize his union with Pilar by marrying her, or at
least, to support her and his child. Although the deceased agreed to
give the child a monthly allowance by way of support, he never
complied with his promise. chanroble svirtualawl ibra ry chan roble s virtual law l ib rary

The appellant was in such a mood when he presented himself one

day at the office where the deceased worked and asked leave of the
manager thereof to speak to Osma. They both went downstairs.
What happened later, nobody witnessed. But the undisputed fact is
that on that occasion the appellant inflicted a wound at the base of
the neck of the deceased, causing his death. chanroble svirtualawl ibra ry chan roble s vi rtual law lib rary

After excluding the improbable portions thereof, the court infers

from the testimony of the appellant that he proposed to said
deceased to marry his daughter and that, upon hearing that the
latter refused to do so, he whipped out his penknife. Upon seeing
the appellant's attitude, the deceased tried to seize him by the neck
whereupon the said appellant stabbed him on the face with the said
penknife. Due to his lack of control of the movement of his arm, the
weapon landed on the base of the neck of the deceased. chanrob lesvi rtua lawlib rary cha nrob les vi rtua l law lib rary

The trial court found that the appellant did not intend to cause so
grave an injury as the death of the deceased. We find that his
conclusion is supported by the evidence. In his testimony the
appellant emphatically affirmed that he only wanted to inflict a
wound that would leave a permanent scar on the face of the
deceased, or one that would compel him to remain in the hospital
for a week or two but never intended to kill him, because then it
would frustrate his plan of compelling him to marry or, at least,
support his daughter. The appellant had stated this intention in
some of his letters to the deceased by way of a threat to induce him
to accept his proposal for the benefit of his daughter. That the act of
the appellant in stabbing the deceased resulted in the fatal wound
at the base of his neck, was due solely to the fact hereinbefore
mentioned that appellant did not have control of his right arm on
account of paralysis and the blow, although intended for the face,
landed at the base of the neck. chanroble svirtualawl ibra ry chan rob les vi rtual law libra ry

Therefore, the mitigating circumstance of lack of intention to cause

so grave an injury as the death of the deceased as well as those of
his having voluntarily surrendered himself to the authorities, and
acted under the influence of passion and obfuscation, should be
taken into consideration in favor of the appellant. chanroble svirtualawl ibra ry chan roble s virtua l law lib rary

Under the facts above stated, we cannot entertain the appellant's

contention that he acted in legitimate self-defense inasmuch as he
provoked and commenced the aggression by whipping out and
brandishing his penknife. chanroble svirtualawl ibra ry chan roble s virtual law lib rary

The defense likewise claims that, at all events, article 49 of the

Revised Penal Code, which refers to cases where the crime
committed is different from that intended by the accused, should be
applied herein. This article is a reproduction of article 64 of the old
Code and has been interpreted as applicable only in cases where the
crime befalls a different person (decisions of the Supreme Court of
Spain of October 20, 1897, and June 28,1899), which is not the
case herein. chanroblesvi rtua lawlib rary cha nrob les vi rtua l law lib rary

The facts as herein proven constitute the crime of homicide defined

and penalized in article 249 of the Revised Penal Code
with reclusion temporal. In view of the concurrence therein of three
mitigating circumstances without any aggravating circumstance, the
penalty next lower in degree, that is prision mayor, should be
imposed. chanroble svirtualawl ibra ry chan roble s virtual law lib rary

Wherefore, pursuant to the provisions of Act No. 4103, the

appellant is hereby sentenced to suffer the indeterminate penalty of
from one (1) year of prision correccional to eight (8) years and (1)
day of prision mayor, affirming the judgment appealed from in all
other respects, with the costs. So ordered. chan roblesv irtualawl ibra ry chan roble s virtual law l ibra ry

Street, Abad Santos, Vickers, and Butte, JJ., concur

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-38773 December 19, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
GINES ALBURQUERQUE Y SANCHEZ, defendant-appellant.

Gibbs and McDonough and Roman Ozaeta, for appellant.

Office of the Solicitor-General Hilado for appellee.

AVANCEÑA, C.J.:

The judgment appealed from finds the appellants Gines Alburquerque guilty of the crime of homicide
committed on the person of Manuel Osma and sentences him to eight years and one day of prision
mayor, and to indemnify the heirs of the deceased in the sum of P1,000, with costs.

The appellant herein, who is a widower of fifty-five years of age and father of nine living children, has
been suffering from partial paralysis for some time, walks dragging one leg and has lost control of
the movement of his right arm. He has been unable to work since he suffered the stroke of paralysis.
One of his daughters was named Maria and another, are married, while still another one is a nun.
With the exemption of the other married daughter and the nun, of all of them, including the appellant,
live with Maria upon whom they depend for support.

Among the daughters living with Maria, one named Pilar became acquainted and had intimate
relations later with the deceased Manuel Osma about the end of the year 1928. It was then that the
appellant became acquainted with the deceased who frequently visited Pilar in his house. The
relations between Pilar and the deceased culminated in Pilar's giving birth to a child. The appellant
did not know that his daughter's relations with the deceased had gone to such extremes, that he had
to be deceived with the information that she had gone to her godfather's house in Singalong, when in
fact she had been taken to the Chinese Hospital for delivery. The appellant learned the truth only
when Pilar returned home with her child.

Naturally the appellant was deeply affected by this incident, since which time he has appeared sad
and worried not only because of the dishonor it brought upon his family but also because the child
meant an added burden to Maria upon whom they all depended for support. For some time the
appellant wrote letters, that at times were hostile and threatening and at other times entreating the
deceased to legitimize his union with Pilar by marrying her, or at least, to support her and his child.
Although the deceased agreed to give the child a monthly allowance by way of support, he never
complied with his promise.

The appellant was in such a mood when he presented himself one day at the office where the
deceased worked and asked leave of the manager thereof to speak to Osma. They both went
downstairs. What happened later, nobody witnessed. But the undisputed fact is that on that occasion
the appellant inflicted a wound at the base of the neck of the deceased, causing his death.

After excluding the improbable portions thereof, the court infers from the testimony of the appellant
that he proposed to said deceased to marry his daughter and that, upon hearing that the latter
refused to do so, he whipped out his penknife. Upon seeing the appellant's attitude, the deceased
tried to seize him by the neck whereupon the said appellant stabbed him on the face with the said
penknife. Due to his lack of control of the movement of his arm, the weapon landed on the base of
the neck of the deceased.

The trial court found that the appellant did not intend to cause so grave an injury as the death of the
deceased. We find that his conclusion is supported by the evidence. In his testimony the appellant
emphatically affirmed that he only wanted to inflict a wound that would leave a permanent scar on
the face of the deceased, or one that would compel him to remain in the hospital for a week or two
but never intended to kill him, because then it would frustrate his plan of compelling him to marry or,
at least, support his daughter. The appellant had stated this intention in some of his letters to the
deceased by way of a threat to induce him to accept his proposal for the benefit of his daughter.
That the act of the appellant in stabbing the deceased resulted in the fatal wound at the base of his
neck, was due solely to the fact hereinbefore mentioned that appellant did not have control of his
right arm on account of paralysis and the blow, although intended for the face, landed at the base of
the neck.

Therefore, the mitigating circumstance of lack of intention to cause so grave an injury as the death of
the deceased as well as those of his having voluntarily surrendered himself to the authorities, and
acted under the influence of passion and obfuscation, should be taken into consideration in favor of
the appellant.

Under the facts above stated, we cannot entertain the appellant's contention that he acted in
legitimate self-defense inasmuch as he provoked and commenced the aggression by whipping out
and brandishing his penknife.
The defense likewise claims that, at all events, article 49 of the Revised Penal Code, which refers to
cases where the crime committed is different from that intended by the accused, should be applied
herein. This article is a reproduction of article 64 of the old Code and has been interpreted as
applicable only in cases where the crime befalls a different person (decisions of the Supreme Court
of Spain of October 20, 1897, and June 28,1899), which is not the case herein.

The facts as herein proven constitute the crime of homicide defined and penalized in article 249 of
the Revised Penal Code with reclusion temporal. In view of the concurrence therein of three
mitigating circumstances without any aggravating circumstance, the penalty next lower in degree,
that is prision mayor, should be imposed.

Wherefore, pursuant to the provisions of Act No. 4103, the appellant is hereby sentenced to suffer
the indeterminate penalty of from one (1) year of prision correccional to eight (8) years and (1) day
of prision mayor, affirming the judgment appealed from in all other respects, with the costs. So
ordered.

Street, Abad Santos, Vickers, and Butte, JJ., concur.