56 PHILIPPINE REPORTS ANNOTATED

United States vs. Ferrer

[No. 60. November 8, 1901.]

THE UNITED STATES, complainant and appellee,  vs.ISIDRO FERRER, defendant and
appellant.

1. CRIMINAL LAW; HOMICIDE; SELF-DEFENSE.—In order to justify homicide on the ground of self-

defense it is essential that the attack upon the defendant be simultaneous with. the killing, or
succeeded the latter without appreciable interval of time.

2. ID.; ID.—The fact that witnesses to the killing have no knowledge of any attack upon the defendant
is sufficient- to negative the contention of self-defense.

3. ID.; MURDER; ALEVOSÍA.—Where the killing has been preceded by a quarrel and there has been
an opportunity for the deceased to defend himself and he was in fact armed with a bar of iron, the
element of treachery (alevosía) is lacking and the crime is homicide, not murder.

4. ID.; HOMICIDE; MITIGATING CIRCUMSTANCES.—The defendant's belief that the deceased had

caused his dismissal from his employment is sufficient to confuse his reason and impel him to
commit the crime, thereby constituting a mitigating circumstance.

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United States vs. Ferrer

5. CRIMINAL LAW; PROCEDURE.—Where the defendant has fired two shots, killing one party and
wounding another, the acts constitute two distinct crimes, each of which must be tried separately.

APPEAL from a judgment of the Court of First Instance of the city of Manila.

The facts are stated in the opinion of the court.

Felipe G. Calderon, for appellant.
Assistant Attorney-General Constantino, for appellee.

MAPA, J.:

This action was commenced by virtue of the information of the prosecuting attorney accusing the
defendant of having fired two shots from his revolver at Don Manuel Rojas, killing him instantly
and wounding at the same time Don Anastasio Franco y Francisco, without causing his death,
however. It was considered that both crimes were the result of a single act and that the attack
was made with treachery (alevosía), and the information charged the compound crime of murder
and grave assault (lesiones graves). The defendant pleaded not guilty.
It appears proved at the trial that on the morning of May 7, 1900, the agents of the
steamer  Don Jose,  which was anchored in the river in this city at the time, and of which the
accused was captain, dismissed the latter from said position, ordering him to turn over command
of the vessel to the first mate of the same. With or without cause the defendant attributed his
dismissal to a difficulty that he had previously had with Rojas, who was the engineer of the same
steamer, and he so stated to the employee of the agents who notified him of his discharge. This
took place in the office of the said agents, and upon the return of the defendant to the
steamer Don Jose there occurred on board of the same the act which is here prosecuted.
The accused fired two shots from a revolver—the first aimed at Rojas, who fell dead on the
spot, and the second aimed at Anastasio Franco, who was standing near Rojas at that moment,
causing the latter wounds which were healed in twenty-eight days. Thus Franco testifies
positively, and his testimony is likewise confirmed by the de-
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United States vs. Ferrer

fendant's own witnesses. All of them saw the latter disputing angrily with the deceased; some say
that he had a revolver in his hand at that moment; others saw the revolver immediately after
hearing the shots, and still others affirm that it was he who fired the said shots. These
statements considered together produce the complete conviction that the accused was the author
of the act complained of.
His very defense concedes the truth of the fact that he caused the death of Rojas, although he
alleges that he did it in self-defense. The defense endeavored to establish. that Rojas assaulted
the accused with an iron instrument and that the latter found himself obliged to fire the revolver
which he was carrying in order to repel the attack. Three witnesses were offered for this purpose.
One of these affirms that he saw the deceased raise his hand to assault the defendant with an
iron instrument, while the remaining two confine themselves to stating in vague and general
terms that they saw the deceased in the attitude of assaulting the accused with said instrument,
without defining the concrete fact of in what the attitude consisted. The remaining witnesses for
the defense were not offered to prove this point and do not say a single word concerning any such
attack.
The first witness is without doubt the most important for the purpose of the defense. This
witness was a member of the crew of the steamer Don Jose, and says that he saw the attack made
by the deceased, because at that moment he was passing by the scene of the occurrence in order
to go to the bow of the steamer. If the witness was on the spot at the precise moment when the
deceased attacked the defendant, and the latter fired the revolver for the express purpose of
preventing the assault, as is alleged by the defense, it would be natural and logical that the said
witness would likewise have witnessed the firing of the revolver, because both acts must have
been simultaneous or at least must have succeeded each other without appreciable interval of
time. If the act occurred in any other way, even though there had really been an attack, the
alleged defensive action would not be fully justified in the eyes of the law. If
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United States vs. Ferrer

any time intervened between the supposed attack of the deceased and the firing of the revolver by
the defendant, the latter's actions would cease to have the true character of a real defense, which,
in order to be legally sufficient, requires primarily and as an essential condition that the attack
be immediately present. The witness could not observe the one and be ignorant of the other if a
true act of self-defense is in question. The firing of the revolver would necessarily have been
witnessed by him, as well as the attack which the defendant is supposed to have tried to stop
thereby. In such event he would not be ignorant of the fact that the death of the victim was the
result of the dispute which occurred between the latter and the accused. Yet the witness states
that he is ignorant of all this, giving us to understand that he did not witness the death of Rojas
nor the firing of the revolver which caused the same, although these things must have occurred
exactly at the moment when he found himself on the scene of the happening or very close thereto,
if his testimony and the allegations of the defense be true. From another point of view his
testimony can not serve in any way to establish the case of defense alleged by the prisoner,
inasmuch as he does not know how the death of Rojas occurred, which is equivalent to saying
that he is ignorant of the details and circumstances under which the act complained of took place.
The foregoing comments are applicable likewise in a certain way to the two witnesses who
state that they saw the deceased in the attitude of attacking the defendant. They testify that in
passing along the levee near which the steamer Don Jose was anchored and when they were some
thirty yards distant therefrom, they saw Rojas in that attitude disputing hotly with the accused.
They continued on their way and a few moments later heard two shots which seemed to them to
proceed from the place where the former were disputing. One of the witnesses had walked ten
paces when he heard the shots, the other could not estimate the space of time that had
intervened between the two periods. Both had learned later only by hearsay from other persons
that the defendant had killed Rojas. If ex-
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United States vs. Ferrer

amined carefully it appears from the testimony of these witnesses that they did not witness the
occurrence in question but merely a detail which might be called preliminary thereto. They did
not witness the defendant's act of discharging the revolver, neither did they witness the death of
Rojas; therefore their testimony even considered as wholly veracious does not and can not avail to
determine the manner in which occurred that fact which is the most important and essential in
the trial. Although they had actually seen the deceased in the attitude of attacking the accused,
their testimony would not serve the purpose of the defense since it does not necessarily imply the
act which the attitude threatened. As a general rule the  mere attitudeof attack does not itself
constitute a real attack, that conclusive and positive aggression which justifies the defense of
one's person. In the present case if the said attitude had been a real attack and the defendant had
made use of his revolver necessarily to prevent or repel the same, this defensive act must needs
have occurred at the very moment at which the supposed attack was made, in which case the
witnesses who saw the attack would not have failed to see the use of the revolver, nor would
there have intervened between the one and the other the interval of time which they give to
understand in their respective statements.
In view of the foregoing considerations we hold the testimony of the said witnesses insufficient
to prove the fact of the attack attributed to the deceased. We are confirmed in this view by the
testimony of the wounded man, Anastasio Franco, who was standing by the deceased when the
occurrence in question took place. He gives positive assurance that the deceased had not
committed any act of aggression when be was attacked by the defendant. It is likewise
noteworthy that none of the remaining witnesses offered by the defendant say a single word
concerning any such attack. One of them saw the act of the defendant's firing upon the deceased;
he describes the relative position occupied by the one and the other, marks the distance which
separated the two, and finally he saw Rojas fall wounded by the shot. This witness seems to have
attentively observed the principal details of the occurrence and neverthe-
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United States vs. Ferrer

less he makes no mention of that supposed attack. If the latter actually existed it is not probable
that the witness, placed in such circumstances, would have failed to see it, and it is even less
probable that, having seen it, he would have omitted to mention the same in his testimony,
especially as a witness for the defendant.
Inasmuch as the said attack is not proved it is not necessary to enter upon an examination of
the remaining requisites which the Penal Code establishes as necessary for the exemption from
responsibility on the ground of self-defense. Since the unlawful attack is the basis and foundation
of this defense, when the same does not exist it is not possible to imagine a case of defense in the
true meaning of the law.
The doctors who held the autopsy upon the remains of the deceased make it appear that the
projectile entered the latter's chest and left the body at the shoulder, from which it is to be
deduced that he was in front of the aggressor when he received the wound. This is likewise
testified to by several witnesses, others stating besides that they saw the parties disputing hotly
between themselves a few moments bef ore they heard the reports and that the deceased then
held in his hand an iron instrument some two hands in length.
Under these circumstances it can not be maintained with reason that the attack which caused
the death of Rojas was committed with treachery, as set forth in the complaint, in order to
characterize the act complained of as murder. The act having been preceded by a dispute which
on account of its heat partook of the character of a genuine quarrel, the deceased was enabled to
guard himself in time against the consequences that the affair might lead to, and to provide
himself against any act of force which his adversary might commit to the peril of his person,
especially as the deceased was armed with an iron instrument which was large enough to serve
as no inconsiderable medium of defense. Furthermore it does not appear that the prisoner
employed means which would. tend to render impossible any attempt at defense on the part of
the deceased, and this it is which. constitutes the characteristic and essential
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United States vs. Ferrer

element of treachery (alevosía). For this reason the act in question should be classed as homicide
defined and penalized in article 404 of the Penal Code and not as murder, since the circumstance
of treachery was not involved in its commission, nor any other one of the remaining qualifying
circumstances which article 403 of said Code mentions in its limitations.
There is to be considered in the commission of the said crime the mitigating circumstance of
passion and obfuscation induced by the belief which the defendant entertained, with or without
reason, that the deceased was the cause of his dismissal. The chagrin of that dismissal and the
consideration of the damage it might cause him not only in his material interests but also in his
reputation were without doubt sufficiently powerful reasons for confusing his reason and
impelling him' to commit the attack of which the deceased was the victim.
 There is no opportunity in the present case to pronounce any judgment concerning the injuries
to Anastasio Franco. These were not caused by the same shot which caused the death of Rojas.
The latter was killed by the first shot. The defendant then discharged his revolver a second time,
and that was when he wounded Franco. Upon the firing of the second shot the deceased had
already fallen to the ground; wherefore it is apparent that the same was not aimed at the latter
but at Franco, who testifies conclusively. Under such circumstances, although the two shots were
fired successively, they do not constitute a single act, but two acts wholly distinct, not only on
account of their own intrinsic duality but also on account of the fact that they were directed
against two different persons. Therefore the provision of article 89 of the Penal Code is not
applicable to these acts. The said injuries constituting, then, a distinct act, independent of the
homicide committed upon the person of Rojas, they should be made the subject of another
proceeding or action separate and independent of the present case in accordance with section 11
of General Orders, No. 58.
By virtue of all of the foregoing, we are of the opinion that there should be imposed upon the
defendant the pen-
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Germann & Co. vs. Donaldson, Sim & Co.

alty of twelve years and a day of  reclusión temporal  with the corresponding accessory
punishments, the payment of an indemnity of 1,000 pesos to the heirs of the deceased, but
without the personal subsidiary responsibility in case of insolvency by virtue of the provisions of
article 51 of the Penal Code, and the costs of this instance. It is so ordered.

Arellano, C. J., Cooper, Willard, and Ladd, JJ., concur.

Torres, J., did not sit in this case.

Judgment modified.

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