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[G.R. No. 10736. August 31, 1916. ]

THE UNITED STATES, Plaintiff-Appellee, v. JUAN SUBINGUBING, Defendant-Appellant.

Celestino Rodriguez for Appellant.

Attorney-General Avanceña for Appellee.


1. HOMICIDE; DEFENSE OF THIRD PERSON; FURNISHING WEAPON TO VICTIM OF ASSAULT. — One who, seeing his neighbor, an old man of 78 years, held down on the ground by a strong and robust young man and in serious danger of being throttled, and believing himself unable to cope with the assailant, as he himself was also old, furnished the person assaulted a small gaff such as is used on gamecocks, with which the latter in such dire need in self-defense inflicted upon his assailant a mortal wound is exempt from criminal responsibility in the same way as the person who inflicted the wound.

2. ID.; ID.; ID. — As the use made by the victim of the assault of a small weapon to defend himself has been judicially held to be lawful and right, so must the act performed by the person who furnished that weapon, for under the provisions of No. 6 of article 8 of the Code he could have acted in defense of the person assaulted and been exempt from responsibility when the requisites explicitly set forth therein concurred in his favor. Acquittal of the slayer on the ground of exemption from responsibility is not in justice consistent with conviction of the assistant who furnished the weapon with which the former lawfully defended himself.



The present case was instituted upon presentation by the provincial fiscal in the Court of First Instance of Cebu of an information dated December 17, 1914, charging Pablo Montealto and Juan Subingsubing with the crime of homicide. Judgment therein was rendered, on March 4 of the present year, holding Montealto not guilty of said crime, freely acquitting him, with one-half of the costs de officio, and ordering that he be set at liberty forthwith; and holding guilty thereof the other defendant, Juan Subingsubing who was sentenced to the penalty of one year and one month of prision correccional, a penalty two degrees lower than that fixed by the law, on account of the concurrence in his favor of three very pronounced mitigating circumstances with no aggravating ones, and to one-half of the costs. From this judgment the defendant Subingsubing has appealed.

In the evening of October 25, 1914, Pablo Montealtos wife was walking along one of the streets of the municipality of San Remigio, Island of Cebu, and when near the cockpit she was accosted by a Japanese called Mariano who made to her unchaste and indecent proposals, which she at once rejected. Thereupon said Japanese violently seized one of her hands and refused to turn her loose in spite of the suggestion of Juan Subingsubing who approached the place where they were and told the Japanese to let the woman go because she was married. At that instant her husband, Pablo Montealto, came up to take part in the struggle that had been begun, whereupon the Japanese, after having insulted the woman with a slanderous phrase, let her go and immediately turning upon her husband Pablo Montealto, an old man of 78 years, suddenly hit him in the face, shoved him down to the ground, then got on top of him and with one hand choked him while beating him with his fist.

In this situation, Juan Subingsubing, fearing that the person assaulted would come to grief, according to his declaration on the stand, approached the combatants and said to Montealto, "Don’t move," for he was going to pull the assailant off; whereupon he heard Montealto say that he (Montealto) had stabbed the Japanese with a gaff such as is used on gamecocks. When Montealto was asked why he had wounded his assailant, he replied that it was because the latter had attempted to abuse his wife and had attacked him. But it appears in the case that the eyewitness of the fight, Alipio Sinining, 12 years of age, testified that in the midst of the fight, when Montealto was stretched out on the ground, with the Japanese on top of him choking him, Juan Subingsubing went up close and handed him something, but the witness did not clearly see the object so secured by Montealto. (Folios 76, 80, and 91.)

The investigation made by the justice of the peace at the place where the Japanese lay seriously wounded shows that the latter had a wound in his abdomen toward the left side under the last rib, 3 centimeters in length and 2 in width. As a result of the seriousness of the wound the man died the next morning.

From the facts related it appears that there actually was committed the crime of homicide, comprised under article 404 of the Penal Code, for, as a consequence of the assault made by the deceased Japanese upon Pablo Montealto, at the time when said Japanese was on top of his victim, throttling him and beating him with his fist, he was suddenly stabbed in the left side of the abdomen by said Montealto. It does not appear that there concurred in the commission of the homicide any qualifying circumstance to classify the crime as murder, but there did concur the circumstance of self-defense, which affords complete exemption from responsibility and which was admitted by the trial court on the ground that the defense Pablo Montealto, an old man of 78 years, had to offer against the rough assault of which he was the victim on the part of the Japanese called Mariano, a middle-aged man of strong and robust physique, was attended by the three requisites explicitly set forth in No. 4 of article 8 of the Penal Code. On this ground the trial judge freely acquitted the defendant Pablo Montealto for inflicting the mortal wound upon his assailant, the Japanese Mariano, but convicted Juan Subingsubing for having furnished Montealto the weapon with which he mortally wounded his assailant.

The case does not afford satisfactory and conclusive proof that the defendant Subingsubing gave a gaff such as is used in cockfighting to Pablo Montealto at the moment when the latter lay supine on the ground, beaten, crushed, and choked, and in peril of being strangled by his assailant, the Japanese Mariano, for the only incriminating circumstance that appears in the case is the testimony of the eyewitness, a boy 12 years old, who stated that Subingsubing handed something which said witness could not see very well to Pablo Montealto while the latter was held down by his throat and supine on the ground under his assailant. This testimony of the 12-year-old Sinining boy is contradicted by the defendants Montealto and Subingsubing, the former of whom avers that he wounded his assailant with a gaff such as is used on gamecocks, which he had in his shirt pocket and which he seized to defend himself from the serious assault of the Japanese.

If this confession of Pablo Montealto be allowed to outweigh the testimony of the Alipio Sinining, it follows that the defendant Juan Subingsubing, who on his part denies the action ascribed to him, is wholly cleared of the charge and the law requires that he be acquitted in this case; but even should we admit the finding of the trial judge that the fact was true and duly proven that Juan Subingsubing furnished the weapon with which Montealto wounded his Japanese assailant, we must still investigate whether even from this point of view the defendant Subingsubing has incurred criminal responsibility.

This individual performed no physical act in defense of Pablo Montealto. He did not attack or even lay hands on the person of the Japanese who had Pablo Montealto on the ground throttling him, therefore the case does not fall under No. 6 of article 8 of the Penal Code, which reads: "Anyone who acts in defense of the person or rights of a stranger, provided that’ the first and second circumstances mentioned in paragraph four are present, and the further circumstance that the person defending be not actuated by revenge, resentment, or other evil motive."cralaw virtua1aw library

But even holding the fact of furnishing a small, short knife to the person assaulted, Montealto, when the latter was in a critical position and plainly unable to defend himself, to be an act of assistance, it is still unquestionable that there concurred the first and second requisites of No. 4 of article 8, because Montealto, previously offended by the Japanese who was somewhat drunk with tuba when he insulted Montealto’s wife, was then unlawfully assaulted by the Japanese who placed him in a situation from which it was difficult, if not impossible, to flee, or to avoid or repel the attack made upon him; that he was finally able to free himself from the peril of certain strangulation was due to the small weapon which in the midst of such danger and imminent risk of death Juan Subingsubing furnished him, according to the finding in the judgment appealed from. Moreover it does not appear that in furnishing his codefendant Montealto the weapon with which to defend himself Juan Subingsubing was actuated by revenge, resentment, or other illicit motive, the third requisite established by the law; and since in holding the defense Montealto offered to the assault of the Japanese to be lawful, and in declaring him exempt from all responsibility the trial judge had to hold that Montealto was compelled by reasonable necessity to make use of a small knife to repel the unlawful attack that seriously jeopardized his existence, it is just and logical to hold that in furnishing said weapon to the person assaulted Juan Subingsubing employed rational means tending to aid Montealto in legitimately defending himself and in repelling that unlawful attack.

As the use Montealto made of the said knife in defending himself has been judicially held to be lawful and right, so must the act performed by Subingsubing in furnishing it to said Montealto in the perilous situation in which the latter found himself; and since the latter, who used the weapon, was declared to be exempt from responsibility in repelling the attack of which he was the victim and in wounding his assailant therewith, the logical consequence of that declaration of exemption from responsibility is that Subingsubing, who furnished the legitimate weapon used in his defense, be also acquitted and declared exempt from any responsibility, because he did not incur it in any way by giving the weapon to Montealto under the circumstances set forth.

The guilt of the accomplice who has furnished the weapon or any instrument for the crime is embraced in that of the principal, who has by his responsibility for the crime incurred the penalty fixed in the Code, even though he may have succeeded in getting away or fleeing or may have afterwards died; but when the perpetrator of the homicide is present and has been tried and acquitted on the ground of complete exemption from responsibility, this acquittal is inconsistent with the conviction of the defendant who took no part in the deed and who did not defend the victim from the assault of which he was the object, but merely furnished him the weapon with which he reasonably and legitimately defended himself and repelled the said assault.

There are many cases of exemption from criminal responsibility on the ground of defense of a third person, decided under the provisions of No. 6 of article 8 of the Penal Code, according to the precedents established by the supreme court of Spain in applying the corresponding article and paragraph of the penal code of that country, as may be seen in its decisions of November 11, 1905, and December 4, 1906, and the principles followed by the courts of the North American Union are in conformity with the doctrine established in these and other cases.

If one who defends a third person under the conditions and with the requisites the penal law lays down for exempting him from responsibility should be acquitted of the charge in a case prosecuted against him, then when a person who did nothing more than furnish a weapon to one whom he saw in peril and in great need of defending himself and repelling a serious assault, as Juan Subingsubing was doing, and where the person assaulted made lawful and reasonable use of the weapon furnished him and has been declared exempt from responsibility, it is illogical and unjust to deny to said assistant the same exemption from responsibility and the exoneration granted the slayer on the grounds of self-defense, as was held in the same judgment to be lawful and right.

For all the foregoing reasons the judgment appealed from should be reversed in the portion referring to the defendant Juan Subingsubing and we must acquit him, as we hereby do, with the costs de officio. The bond filed for his release will be canceled. So ordered.

Arellano, C.J., Johnson and Araullo, JJ., concur.

CARSON, J., with whom concurs TRENT, J., dissenting:chanrob1es virtual 1aw library

I dissent. I think the judgment of the court below should be affirmed.

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