1. CRIMINAL LAW; MITIGATING CIRCUMSTANCE OF VINDICATION OF A GRAVE OFFENSE. — During a fiesta, the accused, a man 70 years of age, asked on Patobo for some roast pig. Patobo’s answer was;" There is no more. Come here and I will make roast pig of you." With this as the provocation, a little latter while the said Patobo was squatting down, the accused came up behind him and struck him on the head with an ax, causing death the following day. The lower court took into consideration the mitigating circumstance that the act was committed in the immediate vindication of a grave offense to the one committing the felony. The offense which the accused was endeavoring to vindicate would to an average person be considered as a mere trifle. But since to this defendant, an old man, it evidently was a serious matter to be made the but of a joke in the presence of so many guests, it is proper to give the defendant the benefit of this mitigating circumstance.
A fiesta was in progress in the barrio of Magbaboy, municipality of San Carlos, Province of Occidental Negros. Roast pig was being served. The accused Clemente Ampar, a man of three score and ten, proceeded to the kitchen and asked Modesto Patobo for some of the delicacy. Patobo’s answer was;" There is no more. Come here and I will make roast pig of you." The effect of this on the accused as explained by him in his confession was, "Why was he doing like that, I am not a child." With this as the provocation, a little later while the said Modesto Patobo was squatting down, the accused came up behind him and struck him on the head with an ax, causing death the following day.
As the case turns entirely on the credibility of witnesses, we should of course not interfere with the findings of the trial court. In ascertaining the penalty, the court, naturally, took into consideration the qualifying circumstance of alevosia. The court, however, gave the accused the benefit of a mitigating circumstance which on cursory examination would not appear to be justified. This mitigating circumstance was that the act was committed in the immediate vindication of a grave offense to the one committing the felony.
The authorities give us little assistance in arriving at a conclusion as to whether this circumstance was rightly applied. The there was immediate vindication of whatever one may term the remarks of Patobo to the accused is admitted. Whether these remarks can properly be classed as "a grave offense" is more uncertain. The supreme court of Spain has held the words "gato que arañaba a todo el mundo," "ladrones," and "era tonto, como toda su familia" as not sufficient to justify a finding of this mitigating circumstance. (Decisions of January 4, 1876; May 17, 1877; May 13, 1886.) But the same court has held the words "tan ladron eres tu como tu padre" to be a grave offense. (Decision of October 22, 1894.) We consider that these authorities hardly put the facts of the present case in their proper light. The offense which the defendant was endeavoring to vindicate would to the average person be considered as a mere trifle. But to this defendant, an old man, it evidently was a serious matter to be made the but of a joke in the presence of so many guests. Hence, it is believed that the lower court very properly gave defendant the benefit of a mitigating circumstance, and correctly sentenced him to the minimum degree of the penalty provided for the crime of murder.
Judgment of the trial court sentencing the defendant and appellant to seventeen years four months and on day of cadena temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased, Modesto Patobo, in the amount of one thousand pesos, and to pay the costs is affirmed, with the costs of this instance against the appellant. So ordered.
, Torres, and Araullo, JJ.
, concurs in the result.
, did not sign.
, concurring:chanrob1es virtual 1aw library
I concur, I think, however, that the extenuating circumstances attending the commission of the crime fall under the provisions of section 7 of the Penal Code rather than under the provisions of section 5 of that Code as indicated in the opinion.