10/26/21, 11:56 PM [ G.R. No.

47722, July 27, 1943 ]

74 Phil. 257

[ G.R. No. 47722, July 27, 1943 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS.
ANTONIO Z. OANIS AND ALBERTO GALANTA, DEFENDANTS AND
APPELLANTS.

DECISION

MORAN, J.:

Charged with the crime of murder of one Serapio Tecson, the accused Antonio Z. Oanis and
Alberto Galanta, chief of police of Cabanatuan and corporal of the Philippine Constabulary, 
respectively, were, after due trial, found guilty by the lower court of homicide through reckless
imprudence and were sentenced each to an indeterminate penalty of from one year and six
months to two years  and two months of prision correccional and to indemnify jointly and
severally the heirs of the deceased in the amount of Pl,000.  Defendants appealed separately
from this judgment.

In the afternoon of December 24, 1938, Captain Godofredo Monsod, Constabulary Provincial
Inspector at Cabanatuan, Nueva Ecija, received from Major Guido a telegram of the following
tenor: "Information received escaped convict Anselmo Balagtas  with bailarina name Irene in
Cabanatuan get him dead or alive."  Captain Monsod accordingly called for his first sergeant
and asked that he be given four men.  Defendant corporal Alberto Galanta, and privates
Nicomedes Oralo, Venancio Serna and D. Fernandez, upon order of their sergeant, reported at
the office of the Provincial Inspector where they were shown a copy of the above-quoted
telegram and a newspaper clipping containing a picture of Balagtas.  They were instructed to
arrest Balagtas and if overpowered, to follow the instruction contained in the telegram. The
same instruction was given to the chief of police Oanis who was likewise called by the
Provincial Inspector.  When the chief of police was asked whether he knew one Irene, a
bailarina, he answered that he knew one of loose morals of the same name.  Upon request  of
the Provincial Inspector, the chief of police tried to locate some of his men to guide the 
constabulary soldiers in ascertaining Balagtas' whereabouts, and failing to see anyone of them
he voluntered to  go with the party.  The Provincial Inspector divided the party  into  two 
groups with defendants Oanis and Galanta, and private Fernandez taking the route to Rizal
street leading to the house where Irene was supposedly living.  When this group arrived at
Irene's house, Oanis approached one Brigida Mallare, who was then stripping banana stalks, and
asked her where Irene's room was.   Brigida indicated the place and upon further inquiry also
said that Irene was  sleeping  with her paramour, Brigida trembling, immediately returned to her
own room which was very near that occupied by Irene and her paramour.  Defendants Oanis and
Galanta then went to the room of Irene, and on seeing a man sleeping with his back towards the
door where they were, simultaneously  or successively fired at him with their .32 and .45 caliber
revolvers.  Awakened by the gunshots, Irene saw her paramour already wounded, and looking at
the door where the shots  came, she saw the defendants still firing at him.  Shocked by the entire
scene,   Irene fainted; it turned out later that the person shot and killed was not the notorious
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criminal Anselmo Balagtas but a peaceful and innocent citizen named Serapio Tecson, Irene's
paramour.  The Provincial Inspector, informed of the killing, repaired to the scene and when he
asked as to who killed the deceased, Galanta, referring to himself and to Oanis, answered:  "We
two, sir."  The corpse was thereafter brought to the provincial hospital and upon autopsy by Dr.
Ricardo de Castro, multiple gunshot wounds inflicted by a .32 and a .45 caliber revolvers were
found on Tecson's body which caused his death.

These are the facts as found by the trial court and fully supported by the evidence,  particularly
by the testimony of Irene Requinea.  Appellants gave, however, a different version of the
tragedy.  According to Appellant Galanta, when he and chief of police Oanis arrived at the
house, the latter asked Brigida where Irene's room was.  Brigida indicated the place, and upon 
further inquiry as to the whereabouts of Anselmo Balagtas, she said that he too was sleeping in
the same room.  Oanis went to the room thus indicated  and  upon opening  the curtain covering
the door, he said: "If you are Balagtas, stand up."  Tecson, the supposed Balagtas, and Irene
woke up and as the former was about to sit up in bed, Oanis fired at him.  Wounded, Tecson
leaned towards the door, and  Oanis receded and shouted:  "That is Balagtas."  Galanta then
fired at Tecson.

On the other hand, Oanis testified that, after he had opened the curtain covering the door and 
after having said, "if you are Balagtas stand up," Galanta at once fired at Tecson, the supposed
Balagtas, while the latter was still lying on bed, and continued firing until he had exhausted his
bullets; that it was only thereafter that he, Oanis, entered the door and upon seeing  the supposed
Balagtas, who was then apparently watching and picking up something from the floor, he fired
at him.

The trial court refused to believe the appellants.  Their testimonies are certainly  incredible  not 
only because they are vitiated by a natural urge to exculpate themselves of the crime, but also
because they are materially contradictory.  Oanis averred that he fired at Tecson when the latter
was apparently watching somebody in an attitude of picking up something  from the floor; on
the other hand, Galanta testified that Oanis shot Tecson while the latter was about to sit up in
bed immediately after he was awakened by a noise.  Galanta testified  that he fired at Tecson,
the supposed Balagtas, when the latter was rushing at him,  But Oanis assured that when
Galanta shot Tecson, the latter was still lying on bed.  It is apparent from these contradictions
that when each of the appellants tries to exculpate himself of the crime  charged, he is at once
belied by the other; but their mutual incriminating averments dovetail  with and corroborate
substantially, the testimony of Irene Requinea.  It should be recalled that, according to
Requinea, Tecson was still sleeping in bed when he was shot to death by appellants.  And this,
to a certain extent, is confirmed by both appellants themselves in  their mutual recriminations. 
According, to  Galanta, Oanis shot Tecson when the latter was still in bed about to sit up just
after he was awakened by a noise.  And Oanis assured that when Galanja shot Tecson, the latter
was still  lying in bed.  Thus corroborated,  and considering that the trial court had the
opportunity to observe her demeanor on the stand, we believe and so hold that no error was
committed in accepting her testimony and in rejecting  the exculpatory pretensions of the two
appellants.  Furthermore, a careful examination  of  Irene's testimony will show not only that her
version of the tragedy is not concocted but that it contains all indicia of veracity.  In her cross-
examination, even misleading questions had been put which were unsuccessful, the witness
having stuck to the truth in every detail of the occurrence.  Under these circumstances, we do
not feel ourselves justified in disturbing the findings of fact made by the trial court.

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The true fact,  therefore, of the case is that, while Tecson was sleeping in his room with his back
towards the door, Oanis and Galanta, on sight, fired at him simultaneously or successively,
believing him to be Anselmo  Balagtas but without having made previously any reasonable
inquiry as to his identity.  And the question is whether or not they may, upon such  fact, be held
responsible for the death thus caused to Tecson.  It is contended that, as  appellants acted in
innocent mistake of fact in the honest performance of their official duties, both of them
believing that Tecson was Balagtas, they incur no criminal liability.  Sustaining this theory in
part, the lower court hold and so declared them guilty of the crime of  homicide through
reckless imprudence.    We are of the opinion, however, that, under the circumstances of the
case, the crime committed by appellants is murder though specially mitigated by circumstances
to be mentioned below.

In support of the theory of non-liability by reason of honest mistake of fact, appellants rely on 
the case of U. S. v. Ah Chong, 15 Phil., 488.  The maxim is ignorantta facti excrisat but this
applies only  when the mistake is committed without fault or carelessness.  In the Ah Chong
case,  defendant therein after having gone to bed was awakened by someone trying to open the
door.  He called out twice, "who is there," but received no answer.  Fearing that the intruder was
a robber, he leaped from his bed and called out again, "if you enter the room I will kill you." But
at that precise moment, he  was struck by a chair which had been placed against the door and
believing that he was then being attacked, he seized a kitchen knife and struck and fatally
wounded the intruder who turned out to be his room-mate.  A common illustration of innocent
mistake of fact is the case of a man who was  masked as a footpad at night and in a lonely road
held up a friend in a spirit of mischief, and with leveled pistol  demanded his money or life.  He
was killed by his friend under the mistaken belief that the attack was real, that the pistol leveled
at his head was loaded and  that his life and property were in imminent danger at the hands of
the aggressor.  In these instances, there is an innocent  mistake of fact committed without any
fault or carelessness because the accused,  having no time or opportunity to make a further
inquiry, and being pressed by circumstances to act immediately, had no alternative but to take
the facts as they then appeared to him, and such facts justified his act of killing.  In the instant
case, appellants, unlike the accused in the instances cited, found no circumstances whatsoever
which would press them to immediate  action.  The person in the room being then asleep,
appellants had ample time  and opportunity to ascertain  his identity without hazard to
themselves, and could even effect a bloodless arrest if any reasonable  effort to that end had
been made, as the victim was unarmed, according to Irene Requinea.  This, indeed is the only
legitimate course of action  for appellants to follow even if the victim was reall Balagtas, as they
were instructed not to kill Balagtas at sight but to arrest him and to get him dead or alive  only if
resistance or aggression is offered by him.

Although an officer in making a lawful arrest is justified in using such force as is reasonably
necessary to secure and detain the offender,  overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself from bodily harm (People vs. Delima, 46 Phil.,
738), yet he is never justified in using unnecessary force or in treating him with wanton
violence, or in resorting to dangerous means when the arrest could be effected otherwise  (6 C.
J. S., par. 13, p. 612).  The doctrine is restated in the new Rules of Court thus:  "No unnecessary
or unreasonable force shall be used in making an arrest, and the person arrested shall not be
subject to  any greater restraint than  is necessary for his detention."  (Rule 109, sec. 2, par. 2). 
And a peace  officer  cannot  claim exemption from criminal liability if he uses unnecessary
force or violence in making an arrest.  (5C. J., p. 753; U. S. vs. Mendoza, 2 Phil., 109).  It may
be true that Anselmo Balagtas was a notorious criminal, a lifetermer,  a fugitive from justice and
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a menace to the peace of the community, but these facts alone constitute no justification for
killing him when, in effecting his arrest, he offers no resistance, or in fact no resistance can be
offered, as when he is asleep.  This, in effect, is the principle laid down, although upon different
facts, in U. S. vs. Donoso (3 Phil.,  234, 242).

It is, however, suggested that a notorious criminal "must be taken by

storm" without regard to
his right to life which he has by such
notoriety already forfeited.  We may approve of this
standard of
official conduct  where the criminal offers resistance or does
something which
places his captors in danger of imminent attack. 
Otherwise we cannot see how, as in the present
case, the mere fact of
notoriety can make the life of a criminal a mere trifle in the hands of
the
officers of the law.  Notoriety rightly supplies a basis for
redoubled official alertness and
vigilance; it never can justify
precipitate action at the  cost of human life. Where, as here, the
precipitate action of the appellants has cost an innocent life and there exist no circumstances
whatsoever to warrant action  of such character in the mind of a reasonably prudent man,
condemnation—not condonation—should  be the rule;  otherwise we  would offer, a premium to
crime in the shelter of official actuation.

The crime committed by appellants, is not merely criminal negligence, the killing being
intentional and not accidental.  In criminal negligence, the injury caused to another should  be
unintentional, it being simply the incident of another act performed without malice.  (People vs.
Sara, 55 Phil, 939).  In the words of Viada, "para que se califique un hecho de imprudencia es
preciso que no haya mediado en el malicia ni intencion alguna  de dañar; existiendo esa
intention, debera calificarse el hecho del delito que ha producido, por mas que no haya sido la
intencion del agente el causar un mal de tanta gravedad como el que se produjo."  (Tomo 7,
Viada Codigo Penal Comentado, 5.a ed. pag. 7).  And, as once held by this Court, a deliberate
intent to do an unlawful act is essentially, inconsistent with the idea  of reckless imprudence
(People vs. Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil.,  16), and where such unlawful
act is  wilfully done, a mistake in the identity of the intended victim cannot be considered as
reckless imprudence(People vs. Gona, 54 Phil., 605) to  support a plea of mitigated liability.

As the deceased was killed while asleep, the crime committed is murder with the qualifying
circumstance of alevosia.  There is, however, a mitigating circumstance of weight consisting in
the incomplete justifying circumstance defined in article 11,  No.  5, of the Revised Penal Code. 
According lo such legal provision, a person incurs no criminal liability when he acts in the
fulfilment of a duty or in the lawful exercise of a right or office.  There are two requisites in
order that the circumstance may be taken as a justifying one:  (a) that  the offender acted in the
performance of a duty or in the lawful exercise of a right; and (b) that the injury or offense
committed be the necessary consequence  of the due performance of such duty or the lawful
exercise of such right or office.  In the instant case, only the first requisite is present—appellants
have acted in the performance of a duty.  The second requisite is wanting for the crime by them
committed is not the necessary consequence of a due performance of their duty.  Their duty was
to arrest Balagtas, or  to get him dead or alive if resistance is offered by him and they are
overpowered.  But through impatience or over-anxiety or in their desire to take no chances, they
have exceeded in the fulfilment of such duty by killing the person whom they believed to be
Balagtas without any resistance from him and without making any previous inquiry as to his
identity.  According to article 69 of the Revised Penal Code, the penalty lower by one or two
degrees than that prescribed by law shall, in such case, be imposed.

For all the foregoing, the judgment is modified and appellants are hereby declared guilty of
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murder with the mitigating circumstance  above mentioned, and accordingly sentenced to an
indeterminate penalty of from five (5) years of prision correccional to fifteen (15) years of
reclusion temporal, with the accessories of the law, and to pay the  Heirs of the deceased
Serapio Tecson jointly and severally an indemnity of P2,000, with costs.

Yulo, C. J., Bocobo, Generoso and Lopez Vito, A., concur.

DISSENTING

PARAS, J.,

Anselmo Balagtas, a life termer and notorious criminal, managed to escape and Reflee from
Manila  to the  provinces.  Receiving information to the effect that he was staying with one
Irene in Cabanatuan, Nueva Ecija, the office of the Constabulary in Manila ordered the
Provincial Inspector in Cabanatuan by telegram dispatched on December 24, 1338, to get
Balagtas "dead  or  alive".  Among those assigned to the task of carrying out the said order, were
Antonio Z. Oanis, chief of police of Cabanatuan, and Alberto Galanta, a Constabulary corporal,
to whom the telegram received by the Provincial Inspector and a newspaper picture of Balagtas
were shown.  Oanis, Galanta and a Constabulary private, after being  told by the Provincial
Inspector to gather information about Balagtas, "to arrest him and, if overpowered, to follow the
instructions contained in the telegram," proceeded to the place where the house of Irene was
located.  Upon arriving thereat, Oanis  approached Brigida Mallari, who was then gathering
banana stalks in the yard, and inquired for the room of Irene.   After Mallari had pointed out the
room, she was asked by Oanis to tell where Irene's paramour, Balagtas,  was, whereupon
Mallari answered that he  was sleeping with Irene.  Upon reaching the room indicated, Oanis
and Galanta, after the  former had shouted "Stand up,  if you are Balagtas," started shooting the
man who was found by them lying down beside a woman.  The man was thereby killed, but
Balagtas was still alive, for it turned out that the person shot by Oanis and Galanta was one
Serapio Tecson.

Consequently, Oanis and  Galanta were charged with having committed  murder.  The Court of
First Instance of Nueva Ecija, however, convicted them only of homicide through reckless
imprudence and sentenced  them each to suffer the indeterminate penalty of from 1 year and 6
months to 2 years and 2 months of prision correctional, to jointly and severally in demnify the
heirs of Serapio Tecson in the amount of P1,000,  and to pay the  costs. Oanis and Galanta have
appealed.

In accomplishing the acts with which the appellants were charged, they undoubtedly followed
the order issued by the Constabulary authorities in Manila requiring the Provincial Inspector in
Cabanatuan to get Balagtas dead or alive, in the honest belief that Serapio Tecson was Anselmo
Balagtas.  As the latter became a fugitive criminal, with revolvers in his possession and a record
that made him extremely dangerous and a public terror, the Constabulary authorities were
justified in ordering his arrest,  whether dead or alive.  In view of said order and the danger
faced by the appellants in carrying it out, they cannot be said to have acted feloniously in
shooting the person honestly believed by them to be the wanted man.  Conscious of the fact that
Balagtas would rather  kill than be captured, the appellants did not want to take chances and
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should not be penalized for such prudence.  On the contrary,  they should be commended for
their bravery and courage bordering on recklessness because,  without  knowing  or ascertaining
whether the wanted man was in fact asleep in his room, they proceeded thereto without
hesitation and thereby exposed their lives to danger.

The Solicitor-General, however, contends that the appellants were authorized to use their
revolvers only after being overpowered by Balagtas.  In the first place, the alleged  instruction
by the Provincial Inspector to that effect, was in violation of the express order given by the
Constabulary authorities in Manila and which was shown to the appellants.  In the second place,
it would indeed be suicidal for the appellants or, for that matter, any agent of the authority to
have waited until they have been overpowered before trying to put out such a character as
Balagtas.  In the third place, it is immaterial whether or not the instruction given by the
Provincial Inspector was legitimate and proper,  because the  facts exist that the appellants acted
in conformity with the express order of superior Constabulary authorities, the legality or
propriety of which is not herein  questioned.

The theory of the prosecution has acquired some plausibility, though quite psychological or
sentimental, in view only of the fact that it was not Balagtas who was actually killed, but  an
"innocent man* * * while he was deeply asleep."  Anybody's heart will be profoundly grieved 
by the tragedy, but in time will be consoled  by the realization that the life of Serapio Tecson,
was not vainly sacrificed  for the incident will always serve as a loud warning to any  one 
desiring to follow in the footsteps of Anselmo Balagtas that in due time the duly constituted
authorities will, upon proper order, enforce the summary forfeiture of his life.

In my opinion, therefore, the appellants are not criminally liable if the person killed by them
was in fact Anselmo Balagtas for  the reason that they did so in the fulfillment of their duty and
in obedience to  an order issued by a superior for some lawful purpose (Revised Penal Code, art.
11, pars. 5 and 6).  They also cannot be held criminally  liable even if the person killed by them
was not Anselmo Balagtas, but Serapio Tecson, because they did so under an honest mistake of
fact not due  to negligence or bad faith, (U. S. vs. Ah Chong, 15 Phil., 488).

It is true that, under article 4 of the Revised  Penal Code, criminal liability is incurred by any
person committing a felony although the wrongful act done be different from that which he 
intended; but said article is clearly inapplicable since the killing of the person who was believed
to be Balagtas was, as already stated, not wrongful or felonious.

The case of U. S. vs. Mendieta (34 Phil., 242), cited by the Solicitor-General, is not in point,
inasmuch as the defendant therein, who intended to injure Huario Lauigan with whom he had a
quarrel, but killed another by mistake, would not be exempted from criminal liability if he
actually injured or killed Hilario Lauigan, there being a malicious design on his part.  The other
case invoked by the prosecution is U.S. vs. Donoso (3 Phil., 234) This is also not in point, as it
appears that defendants therein killed one Pedro Almasan after he had already surrendered and
allowed himself to be bound and that the said defendants did not have lawful instructions from
superior authorities to capture Almasan dead or alive.

The appealed judgment should therefore be reversed and the appellants, Antonio Z. Oanis and
Alberto Galanta, acquitted, with costs de oficio.

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DISSENTING

HONTIVEROS, J.,

According to the opinion of the majority, it is proper to follow the rule that a notorious criminal
"must be taken by storm without regard to his life which he has, by his conduct, already
forfeited," whenever said criminal offers resistance or does something which places his captors
in danger  of imminent attack.  Precisely, the situation which confronted the accused-appellants
Antonio Z. Oanis and Alberto Galanta in the afternoon of December 24, 1938, was very similar
to this.  It must be remembered that both officers received instructions to get Balagtas "dead or
alive", and according to the attitude of not only the said appellants but also of Capt. Monsod,
constabulary provincial inspector of Nueva Ecija, it may be assumed that said instructions gave
more emphasis to the first part; namely, to take him dead.  It appears in the record that after the
shooting, and having been informed of the case, Capt. Monsod stated that Oanis  and Galanta
might be decorated for what they had done.  That was when all parties concerned honestly
believed that the dead person was Balagtas himself, a dangerous criminal who had escaped from
his guards and was supposedly armed with a .45 caliber pistol.  Brigida  Mallari, the person
whom the appellants met upon arriving at the house of Irene Requinea, supposed mistress of
Balagtas, informed them that saidB alagtas was Upstairs.  Appellants found there asleep a man
closely  resembling the wanted criminal.  Oanis said: "If you are Balagtas stand up."  But the
supposed criminal showed his intention to attack the appellants, a conduct easily explained by
the fact that he should have felt offended by the intrusion of persons in the room where he was
peacefully lying down with his mistress.  In such predicament, it was nothmg but human on the
part of the appellants to employ force and to make use of their weapons in order to repel the
imminent attack by a person who, according to the belief, was Balagtas.  It was unfortunate
however that an innocent man was actually killed.  But taking into consideration the fact? of the
case, it is, according to my humble opinion, proper to apply herein  the  doctrine laid down in
the case of U. S. vs. Ah Chong (15 Phil., 488).  In the instant case we have, as in the case supra,
an innocent mistake  of fact committed without any fault or carelessness on the part of the
accused, who, having no time to make a further inquiry, had no  alternative but to take the  facts
as they appeared to them and act immediately.

The decision of the majority, in recognition of the special circumstances of this case which 
favored the accused-appellants, arrives at the conclusion that an incomplete justifying
circumstance may be invoked, and therefore, according to Artide 69 of the Revised Penal Code,
the imposable penalty should be one which is lower by one or two degrees than that prescribed
by law.  This incomplete justifying circumstance is that defined in Article 11, No. 5, of the
Revised Penal Code, in favor of "a  person who acts in the fulfillment of a duty or in the lawful
exercise of a right or office."  I believe that the application of this circumstance is not proper. 
Article 69 of the Revised Penal Code provides as follows:

"ART. 69. Penaity to be imposed when the crime committed is not wholly excusable.
—A penalty lower by one  or two degrees than that prescribed by law shall be
imposed if the deed is not wholly excusable by reason of the lack of some of the
conditions required to justify the same or to exempt  from criminal liability in the
several cases mentioned in articles 11 and 12, provided that the majority of such
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conditions be present.  The courts shall impose the penalty in the period which may
be deemed proper, in view of the number and nature of the conditions of exemption
present or lacking."

This privision has been copied almost verbatim from Article 84 of the old Penal Code of the
Philippines, and which was also taken from Article 87 of the Spanish Penal Code of 1870.

Judge Guillermo Guevara, one of the members of the Committee created by Administrative
Order No. 94 of the Department of Justice for the drafting of the Revised Penal Code, in
commenting on Article 69, said that the justifying circumstances and circumstances exempting
from liability which are the subject matter of this article are the following: self-defense,  defense
of relatives, defense of strangers,  state of necessity and injury caused by  mere accident. 
Accordingly, justifying circumstance No. 5 of Article 11 dealing with the fulfillment of a duty
or the lawful exercise of a right,1 calling or office, cannot be placed within its scope.

The eminent treatiser of criminal law Mr. Groizard, in his commentary of Article 87 of the
Spanish Penal Code of 1870 which is the  source of Article 69  of  our Code, says:

"Ni tratandose de  la imbecilidad, ni de la locura, ni de la menor edad, ni del que

obra violentado por una fuerza irresistible o impulsado por miedo insuperable de un
mal igual o mayor, o en cumplimientode un deber, o en el ejercicio legitimo  de un
derecho, oficio o cargo, o en virtud de obediencia debida, ni del que incurre en
alguna omision hallandose impedido por causa legitima o insuperable, puede tener
aphcacion al articulo que comentamos.  Y la  razon  es  obvia.  En ninguna de estas
exenciones hay pluralidad de requisitos.  La irresponsabilidad depende de  una sola
condicion.  Hay o no perturbation de la razon el autor del hecho es o no menor de
nueve años; existe o no violencia material o moral irresistible, etc., etc.; tal es lo que
respectivamente hay que examinar y resolver para declarar la culpabilidad o
inculpabilidad,  Es, por lo tanto, imposible que acontezca lo que el texto que va al
frente de estas lineas requiere, para que se imponga al autor del hecho la penalidad
excepcional que establece; esto es, que fallen algunos requisitos de los que la ley
exige para eximir de responsabilidad, y que concurran el mayor numero de ellos,
toda  vez que, en los casos referidos, la ley no exigo multiples condiciones."

It must be taken into account the fact according to Article 69 a penalty lower by one or two
degrees than that prescribed by law shall be imposed if the deed is not wholly excusable by 
reason of the lack of some of the conditions required by the law to justify the same or exempt
from criminal liability.  The word "conditions" should not be confused with the word
"requisites".  In dealing with justifying circumstance No. 5, Judge Guevara states: "There are 
two requisites in order that this  circumstance may be taken into account: (a) That the offender
acted in the performance of his duty or in the lawful exercise of a right; and (b)  That the injury
or offense committed be the necessary consequence of the performance of a duty or the lawful
exercise of a right or office."  It is evident that these two requisites concur in the present case if
we consider the intimate connection between the order given to the appellant by Capt. Monsod, 
the showing to them of the telegram from Manila to get Balagtas who was with a bailarina
named Irene, the conduct of said appellants in questioning  Brigida Mallari and giving a
warning to the supposed criminal when both found him with Irene, and the statement made by
Capt. Monsod after the shooting.

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If appellant Oanis  is entitled to a reversal of the decision of the court below, there are more
reasons in favor of the acquittal of appellant Galanta.  According to the evidence no bullet from
the gun fired by this accused ever hit Serapio Tecson.  Galanta was armed in the afternoon of
December  24,  1938, with a .45 caliber revolver (Exhibit L) He so testified and  was
corroborated by the unchallenged testimony of his superior officer Sgt Valeriano Serafica. 
According to this witness since Galanta was made a corporal of the Constabulary  he was given,
as part of his equipment, revolver Exhibit  L with a serial No. 37121.  This gun had been
constantly used by Galanta, and, according to Sgt. Pedro Marasigan, who accompanied said
accused when he took it from his trunk in the barracks on the night of December 24, 1938, upon
order of Captain  Monsod, it was the same revolver which was given  to the witness with five
.45 caliber bullets and one emty shell.  Fourteen unused  bullets were  also taken from Galanta
by Sergeant Serafica, thus completing his regular equipment of twenty bullets which he had on
the morning of December 24, 1938, when Sergeant Serafica made the usual inspection of the
firearms in the possession of the non-commissioned officers and privates of the constabulary
post at Cabanatuan.  Galanta stated that he had fired only one shot and missed.  This testimony
is corroborated by that of a ballistic expert who testified that bullets  exhibits F and O,— the
first being  extracted from the head of the deceased, causing wound No. 3 of autopsy report
Exhibit C and the second found at the place of the shooting,—had not been fired from revolver
Exhibit L nor from any other revolver of the constabulary station in Cabanatuan.  It was
impossible for the accused Galanta to have substituted his revolver because when Exhibit L was
taken from him nobody in the barracks doubted that the deceased was none other than Balagtas. 
Moreover, Exhibit L was not out of order and therefore there was no reason why Galanta should
carry along another gun, according to the natural course of things.

On the other hand, aside from wound No. 3 as above stated, no other wound may be said to
have been caused by a .45 caliber revolver bullet.  Doctor Castro's record gives the conclusion 
that  wound No. 2 must have  been caused by a .45 caliber bullet, but inasmuch as the diameter
of the wound's entrance  was  pnly  8 mm., the caliber should be .32 and not .45, because
according to the medico-legal expert who testified in this case, a bullet of a .45  caliber will
produce a wound entrance with either 11  mm. or 12 mm. diameter.  All other wounds found by 
the surgeon who performed the autopsy appeared to have been caused by bullets of a lesser
caliber.  In consequence, it can be stated that no bullet fired by Galanta did ever hit or kill
Serapio Tecson and therefore there is no reason why he should be declared crim inally
responsible for  said  death.

Source: Supreme Court E-Library | Date created: August 08, 2014

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