FIRST DIVISION
[G.R. No. 2400. April 3, 1906. ]
THE UNITED STATES, Plaintiff-Appellee, v. HOMER E. GRAFTON, Defendant-Appellant.
Capt. Clarence S. Nettles, for Appellant.
Attorney-General Wilfley, for Appellee.
SYLLABUS
1. SENTRY, DUTIES OF. — A sentry in time of peace, in daylight, with no crown near by and with the guard within hail, is not justified in shooting an unarmed man, lawfully on the highway, although he believes that the man has participated in a threatening demonstration against him by his comrade who was armed with a knife and whom the soldier has just shot.
2. ID.; D. — The shortness of the interval between the two shots is no justification where the sentry had time to observe that the second man was unarmed and instead of advancing on him had retreated and was crouching down against a wall 45 feet distant.
3. FORMER JEOPARDY, DEFENSE OF. — An acquittal of manslaughter by a court-martial in time of peace does not bar a prosecution by the Civil Government for murder, or asesinato, charged on the same facts.
2. ID.; D. — The shortness of the interval between the two shots is no justification where the sentry had time to observe that the second man was unarmed and instead of advancing on him had retreated and was crouching down against a wall 45 feet distant.
3. FORMER JEOPARDY, DEFENSE OF. — An acquittal of manslaughter by a court-martial in time of peace does not bar a prosecution by the Civil Government for murder, or asesinato, charged on the same facts.
D E C I S I O N
TRACEY, J.:
The defendant, charged with the crime of murder (asesinato), was convicted of homicide and sentenced to a term of imprisonment of twelve years and one day. He was a private in the United States Army, and when on guard at a military reservation at Camp Jossman, Guimaras, shot and killed two Filipinos Florentino Castro and Felix Villanueva. For this offense he was tried by court-martial and acquitted, but thereafter we prosecuted by the people in the present action for the death of Felix Villanueva.
The first inquiry is, Was the shooting justified? It occurred on (Sunday afternoon, July 24, 1904, between 2 and 3 o’clock; the deceased were both employed as boatmen in the United States quartermaster’s department and were at the time in a road used as a public thoroughfare which the sentry was patrolling.
The defendant’s testimony is as follows:jgc:chanrobles.com.ph
"I was at the east end of my post about starting to the west post. I arrived at about half way between Lieutenant Harrell’s quarters and the storehouse. Two natives came on my post about half way between the storehouse and the coal pile on the left. They had climbed over the stonewall and passed over my post. They advanced directly toward my post. When I arrived at the corner of the storehouse they were about the corner of the same storehouse at the other end. Just as I started to cross those stones, one of the natives reached in his bosom and pulled out a knife and immediately he changed the handle and concealed the knife under his arm from my view. Upon seeing that, I looked back toward the building on the right of the road coming toward the dock and upon getting near the building they had arrived at a place to my left. Upon gaining this position, the native turned the knife with the point toward me and made a rush at me. At the same time the other native followed close to him. At the time he did this I brought my piece to my shoulder, threw a cartridge in the magazine, and fired at him. The other native jumped back toward the quartermaster building. I loaded my rifle and fired at him. Immediately after firing at the second native I hallooed for the guard. As soon as I hallooed for the guard I looked in the direction the guard was coming from."cralaw virtua1aw library
On being interrogated by his counsel, he further testified that as the native approached him he had left his path immediately before the shooting and walked from 15 to 18 feet away toward the southerly storehouse.
Upon cross-examination he testified, putting his testimony into narrative form:jgc:chanrobles.com.ph
"Florentino was running when I shot him and was distant from me when I fired about four paces; he dropped practically right where I shot him; the other man followed right behind him on the run; I don’t know exactly where he was when I shot him, but the distance was about [indicating about 35 feet]. He was not coming toward me when I fired; he jumped back toward the quartermaster building before I fired; he had no weapon that I saw; he was crouching; there was an interval between the two shots, time to load my magazine; there had to be a little space of time to work the magazine; first he started running toward me, a little to the right and to the rear of the other man who was rushing upon me with a knife; he changed his attitude and started the other way when I fired the first shot; I did not see any weapon in his hand or on his person."cralaw virtua1aw library
He further testified that on looking around he saw no other native than the two upon whom he fired; that he shot them because they were trying to do him injury; that he considered his life in danger; that he fired but two shots and that neither of the natives moved from the spot where they fell prior to the arrival of Lieutenant Harrell, who came almost immediately after the shooting.
Lieutenant Harrell, the commanding officer of the defendant, who saw the bodies where they fell, measured the distance and made a memorandum about forty-five minutes after the shooting; swore that the body of Florentino Castro lay 10
The first inquiry is, Was the shooting justified? It occurred on (Sunday afternoon, July 24, 1904, between 2 and 3 o’clock; the deceased were both employed as boatmen in the United States quartermaster’s department and were at the time in a road used as a public thoroughfare which the sentry was patrolling.
The defendant’s testimony is as follows:jgc:chanrobles.com.ph
"I was at the east end of my post about starting to the west post. I arrived at about half way between Lieutenant Harrell’s quarters and the storehouse. Two natives came on my post about half way between the storehouse and the coal pile on the left. They had climbed over the stonewall and passed over my post. They advanced directly toward my post. When I arrived at the corner of the storehouse they were about the corner of the same storehouse at the other end. Just as I started to cross those stones, one of the natives reached in his bosom and pulled out a knife and immediately he changed the handle and concealed the knife under his arm from my view. Upon seeing that, I looked back toward the building on the right of the road coming toward the dock and upon getting near the building they had arrived at a place to my left. Upon gaining this position, the native turned the knife with the point toward me and made a rush at me. At the same time the other native followed close to him. At the time he did this I brought my piece to my shoulder, threw a cartridge in the magazine, and fired at him. The other native jumped back toward the quartermaster building. I loaded my rifle and fired at him. Immediately after firing at the second native I hallooed for the guard. As soon as I hallooed for the guard I looked in the direction the guard was coming from."cralaw virtua1aw library
On being interrogated by his counsel, he further testified that as the native approached him he had left his path immediately before the shooting and walked from 15 to 18 feet away toward the southerly storehouse.
Upon cross-examination he testified, putting his testimony into narrative form:jgc:chanrobles.com.ph
"Florentino was running when I shot him and was distant from me when I fired about four paces; he dropped practically right where I shot him; the other man followed right behind him on the run; I don’t know exactly where he was when I shot him, but the distance was about [indicating about 35 feet]. He was not coming toward me when I fired; he jumped back toward the quartermaster building before I fired; he had no weapon that I saw; he was crouching; there was an interval between the two shots, time to load my magazine; there had to be a little space of time to work the magazine; first he started running toward me, a little to the right and to the rear of the other man who was rushing upon me with a knife; he changed his attitude and started the other way when I fired the first shot; I did not see any weapon in his hand or on his person."cralaw virtua1aw library
He further testified that on looking around he saw no other native than the two upon whom he fired; that he shot them because they were trying to do him injury; that he considered his life in danger; that he fired but two shots and that neither of the natives moved from the spot where they fell prior to the arrival of Lieutenant Harrell, who came almost immediately after the shooting.
Lieutenant Harrell, the commanding officer of the defendant, who saw the bodies where they fell, measured the distance and made a memorandum about forty-five minutes after the shooting; swore that the body of Florentino Castro lay 10
