Us VS Ah Chong

6/19/2018 PHILIPPINE REPORTS ANNOTATED VOLUME 015
[No. 5272. March 19, 1910.]
THE UNITED STATES, plaintiff and appellee, vs. AH

CHONG, defendant and appellant.
JUSTIFIABLE HOMICIDE; SELF-DEFENSE; MlSTAKE

OF FACTS.—Defendant was a cook and the deceased was a
house boy, and both were employed in the same place and
usually slept in the same room. One night, after the defendant
had gone to bed, he was awakened by some one trying to open
the door, and called out twice, "Who is there?" He received no
answer, and fearing that the intruder was a robber, leaped
from the bed and again called out: "If you enter the room I will
kill you." At that moment he was struck by a chair which had
been placed against the door. Believing that he was being
attacked, he seized a kitchen knife and struck and fatally
wounded the intruder, who turned out to be his roommate.
Thereupon he called to his employers and rushed back into the
room to secure bandages to bind up the wound. Defendant was
charged with murder. While there can be no doubt of
defendant's exemption from liability if the intruder had really
been a robber, the question presented is whether, in this
jurisdiction, a person can be held criminally responsible when,
by reason of a mistake of f acts, he does an act for which he
would be exempt if the facts were as he supposed them to be,
but would constitute murder if he had known the true state of
facts at the time.
Held, That, under such circumstances, there is no criminal
liability, provided that the ignorance or mistake of fact was not
due to negligence or bad faith. In other words, if such
ignorance or mistake of facts is sufficient to negative a
particular intent which, under the law, is a necessary
ingredient of the offense charged it destroys the presumption of
intent and works an acquittal; except in those cases where the
circumstances demand a conviction under the penal provisions
governing negligence, and in cases where, under the provisions
of article 1 of the Penal
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VOL. 15, MARCH 19, 1910. 489
United States vs. Ah Chong.
Code, a person voluntarily committing an act incurs criminal

liability even though the act be different from that which he
intended to commit.
APPEAL from a judgment of the Court of First Instance of

Rizal. Yusay, J.
The f acts are stated in the opinion of the court.

Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and vital facts in

this case is limited to the testimony of the accused himself,
because from the very nature of these facts and from the
circumstances surrounding the incident upon which these
proceedings rest, no other evidence as to these f acts was
available either to the prosecution or to the defense. We
think, however, that, giving the accused the benefit of the
doubt as to the weight of the evidence touching those
details of the incident as to which there can be said to be
any doubt, the following statement of the material facts
disclosed by the record may be taken to be substantially
correct:
The defendant, Ah Chong, was employed as a cook at
"Officers' quarters, No. 27," Fort McKinley, Rizal Province,
and at the same place Pascual Gualberto, deceased, was
employed as a house boy or muchacho. "Officers' quarters
No. 27" is a detached house situated some 40 meters from
the nearest building, and in August, 1908, was occupied
solely as an officers' mess or club. No one slept in the house
except the two servants, who jointly occupied a small room
toward the rear of the building, the door of which opened
upon a narrow porch running along the side of the building,
by which communication was had with the other part of the
house. This porch was covered by a heavy growth of vines
for its entire length and height. The door of the room was
not furnished with a permanent bolt or lock, and the
occupants, as a measure of security, had attached a small
hook or catch on the inside of the door, and
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490 PHILIPPINE REPORTS ANNOTATED
were in the habit of reinforcing this somewhat insecure

means of fastening the door by placing against it a chair. In
the room there was but one small window, which, like the
door, opened on the porch. Aside from the door and
window, there were no other openings of any kind in the
room.
On the night of August 14, 1908, at about 10 o'clock, the
defendant, who had retired for the night, was suddenly
awakened by someone trying to force open the door of the
room. He sat up in bed and called out twice, "Who is there?"
He heard no answer and was convinced by the noise at the
door that it was being pushed open by someone bent upon
forcing his way into the room, Due to the heavy growth of
vines along the front of the porch, the room was very dark,
and the defendant, fearing that the intruder was a robber
or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just
above the knee by the edge of the chair which had been
placed against the door, In the darkness and confusion the
defendant thought that the blow had been inflicted by the
person who had forced the door open, whom he supposed to
be a burglar, though in the light of after events, it is
probable that the chair was merely thrown back into the
room by the sudden opening of the door against which it
rested. Seizing a common kitchen knife which he kept
under his pillow, the defendant struck out wildly at the
intruder who, it afterwards turned out, was his roommate,
Pascual. Pascual ran out upon the porch and fell down on
the steps in a desperately wounded condition, followed by
the defendant, who immediately recognized him in the
moonlight Seeing that Pascual was wounded, he called to
his employers who slept in the next house, No. 28, and ran
back to his room to secure bandages to bind up Pascual's
wounds.
There had been several robberies in Fort McKinley not
long prior to the date of the incident just described, one of
which took place in a house in which the defendant was
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VOL. 15, MARCH 19, 1910. 491

employed as cook; and as defendant alleges, it was because

of these repeated robberies he kept a knife under his pillow
for his personal protection.

The deceased and the accused, who roomed together and
who appear to have been on friendly and amicable terms
prior to the fatal incident, had an understanding that when
either returned at night, he should knock at the door and
acquaint his companion with his identity. Pascual had left
the house early in the evening and gone for a walk with his
friends, Celestino Quiambao and Mariano Ibañez, servants
employed at officers' quarters No. 28, the nearest house to
the mess hall. The three returned from their walk at about
10 o'clock, and Celestino and Mariano stopped at their
room at No, 28, Pascual going on to his room at No. 27. A
few moments after the party separated, Celestino and
Mariano heard cries for assistance and upon returning to
No. 27 found Pascual sitting on the back steps fatally
wounded in the stomach, whereupon one of them ran back
to No. 28 and called Lieutenants Jacobs and Healy, who
immediately went to the aid of the wounded man.
The defendant then and there admitted that he had
stabbed his roommate, but said that he did it under the
impression that Pascual was "a ladron" because he forced
open the door of their sleeping room, despite defendant's
warnings.
No reasonable explanation of the remarkable conduct on
the part of Pascual suggests itself, unless it be that the boy
in a spirit of mischief was playing a trick on his Chinese
roommate, and sought to frighten him by forcing his way
into the room, refusing to give his name or say who he was,
in order to make Ah Chong believe that he was being
attacked by a robber.
Def endant was placed under arrest f orthwith, and
Pascual was conveyed to the military hospital, where he
died from the effects of the wound on the following day.
The defendant was charged with the crime of
assassination, tried, and found guilty by the trial court of
simple
492

homicide, with extenuating circumstances, and sentenced

to six years and one day presidio mayor, the minimum
penalty prescribed by law.
At the trial in the court below the defendant admitted
that he killed his roommate, Pascual Gualberto, but
insisted that he struck the fatal blow without any intent to
do a wrongful act, in the exercise of his lawful right of

selfdefense.
Article 8 of the Penal Code provides that—
"The following are not delinquent and are therefore
exempt f rom criminal liability:
* * * * * * *
"4. He who acts in defense of his person or rights, provided

there are the following attendant circumstances:
"(1) Illegal .aggression.

"(2) Reasonable necessity of the means employed to
prevent or repel it.
"(3) Lack of sufficient provocation on the part of the
person defending himself."
Under these provisions we think that there can be no doubt

that defendant would be entitled to complete exemption
from criminal liability for the death of the victim of his
fatal blow, if the intruder who forced open the door of his
room had been in fact a dangerous thief or "ladron," as the
defendant believed him to be. No one, under such
circumstances, would doubt the right of the defendant to
resist and repel such an intrusion, and the thief having
forced open the door notwithstanding defendant's
thricerepeated warning to desist, and his threat that he
would kill the intruder if he persisted in his attempt, it will
not be questioned that in the darkness of the night, in a
small room, with no means of escape, with the thief
advancing upon him despite his warnings, defendant would
have been wholly justified in using any available weapon to
defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his
whereabouts and deliver the first blow.
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VOL. 15, MARCH 19, 1910. 493

But the evidence clearly discloses that the intruder was not
a thief or a "ladron." That neither the defendant nor his
property nor any of the property under his charge was in
real danger at the time when he struck the fatal blow. That
there was no such "unlawful aggression" on the part of a
thief or "ladron" as defendant believed he was repelling and
resisting, and that there was no real "necessity" for. the use
of the knife to defend his person or his property or the

property under his charge.
The question then squarely presents itself, whether in
this jurisdiction one can be held criminally responsible
who, by reason of a mistake as to the facts, does an act for
which he would be exempt from criminal liability if the
facts were as he supposed them to be, but which would
constitute the crime of homicide or assassination if the
actor had known the true state of the facts at the time
when he committed the act. To this question we think there
can be but one answer, and we hold that under such
circumstances there is no criminal liability, provided
always that the alleged ignorance or mistake of fact was
not due to negligence or bad f aith.
In broader terms, ignorance or mistake of fact, if such
ignorance or mistake of fact is sufficient to negative a
particular intent which under the law is a necessary
ingredient of the offense charged (e. g., in larceny, animus
furendi; in murder, malice; in crimes and misdemeanors
generally some degree of criminal intent) "cancels the
presumption of intent," and works an acquittal; except in
those cases where the circumstances demand a conviction
under the penal provisions touching criminal negligence;
and in cases where, under the provisions of article 1 of the
Penal Code one voluntarily committing a crime or
misdemeanor incurs criminal liability for any wrongful act
committed by him, even though it be different from that
which he intended to commit. (Wharton's Criminal Law,
sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and
cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth
vs. Power, 7 Met.,
494

596; Yates vs. People, 32 N. Y., 509; Isham vs. State, 38

Ala., 213; Commonwealth vs. Rogers, 7 Met., 500.)
The general proposition thus stated hardly admits of
discussion, and the only question worthy of consideration is
whether malice or criminal intent is an essential element
or ingredient of the crimes of homicide and assassination
as defined and penalized in the Penal Code. It has been
said that since the definitions there given of these as well
as most other crimes and offenses therein defined, do not
specifically and expressly declare that the acts constituting
the crime or offense must be committed with malice or with

criminal intent in order that the actor may be held
criminally liable, the commission of the acts set out in the
various definitions subjects the actor to the penalties
described therein, unless it appears that he is exempted
from liability under one or other of the express provisions
of article 8 of the code, which treats of exemptions. But
while it is true that contrary to the general rule of
legislative enactment in the United States, the definitions
of crimes and offenses as set out in the Penal Code rarely
contain provisions expressly declaring that malice or
criminal intent is an essential ingredient of the crime,
nevertheless, the general provisions of article 1 of the code
clearly indicate that malice, or criminal intent in some
form, is an essential requisite of all crimes and offenses
therein defined, in the absence of express provisions
modifying the general rule, such as are those touching
liability resulting from acts negligently or imprudently
committed, and acts done by one voluntarily committing a
crime or misdemeanor, where the act committed is
different from that which he intended to commit. And it is
to be observed that even these exceptions are more
apparent than real, for "There is little distinction, except in
degree, between a will to do a wrongf ul thing and
indifference whether it is done or not. Therefore
carelessness is criminal, and within limits supplies the
place of the affirmative criminal intent" (Bishop's New
Criminal Law, vol. 1, s. 313) ; and, again, "There is
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VOL. 15, MARCH 19, 1910. 495

so little difference between a disposition to do a great harm

and a disposition to do harm that one of them may very
well be looked upon as the measure of the other. Since,
therefore, the guilt of a crime consists in the disposition to
do harm, which the criminal shows by committing it, and
since this disposition is greater or less in proportion to the
harm which is done by the crime, the consequence is that
the guilt of the crime follows the same proportion; it is
greater or less according as the crime in its own nature
does greater or less harm" (Ruth. Ints. C. 18, p. 11) ; or, as
it has been otherwise stated, the thing done, having
proceeded from a corrupt mind, is to be viewed the same
whether the corruption was of one particular form or
another.
Article 1 of the Penal Code is as follows:

"Crimes or misdemeanors are voluntary acts and
omissions punished by law.
"Acts and omissions punished by law are always
presumed to be voluntary unless the contrary shall appear.
"Any person voluntarily committing a crime or
misdemeanor shall incur criminal liability, even though the
wrongful act committed be different from that which he
had intended to commit."
The celebrated Spanish jurist Pacheco, discussing the
meaning of the word "voluntary" as used in this article,
says that a voluntary act is a free, intelligent, and
intentional act, and roundly asserts that without intention
(intention to do wrong or criminal intention) there can be
no crime; and that the word "voluntary" implies and
includes the words "con malicia" which were expressly set
out in the definition of the word "crime" in the code of 1822,
but omitted from the code of 1870, because, as Pacheco
insists, their use In the former code was redundant, being
implied and included in the word "voluntary," (Pacheco,
Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to
commit the crime can only be said to exempt from criminal
496

responsibility when the act which was actually intended to

be done was in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits and
recognizes in his discussion of the provisions of this article
of the code that in general without intention there can be
no crime. (Viada, vol. 1, p. 16.) And, as we have shown
above, the exceptions insisted upon by Viada are more
apparent than real.
Silvela, in discussing the doctrine herein laid down,
says:
"In fact, it is sufficient to remember the first article,
which declares that where there is no intention there is no
crime * * * in order to affirm, without fear of mistake, that
under our code there can be no crime if there is no act, an
act which must fall within the sphere of ethics if there is no
moral injury." (Vol. 2, The Criminal Law, folio 169.)
And to the same effect are various decisions of the
supreme court of Spain, as, for example in its sentence of
May 31, 1882, in which it made use of the following

language:
"It is necessary that this act, in order to constitute a
crime, involve all the malice which is supposed from the
operation of the will and an intent to cause the injury
which may be the object of the crime."
And again in its sentence of March 16, 1892, wherein it
held that "considering that, whatever may be the civil
effects of the inscription of his three sons, made by the
appellant in the civil registry and in the parochial church,
there can be no crime because of the lack of the necessary
element or criminal intention, which characterizes every
action or omission punished by law; nor is he guilty of
criminal negligence."
And to the same effect in its sentence of December 30,
1896, it made use of the following language:
" * * * Considering that the moral element of the crime,
that is, intent or malice or their absence in the commission
of an act defined and punished by law as criminal, is not a
necessary question of fact submitted to the exclusive
judgment and decision of the trial court."
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That the author of the Penal Code deemed criminal intent

or malice to be an essential element of the various crimes
and misdemeanors therein defined becomes clear also from
an examination of the provisions of article 568, which are
as f ollows:
"He who shall execute through reckless negligence an
act that, if done with malice, would constitute a grave
crime, shall be punished with the penalty of arresto mayor
in its maximum degree, to prisión correccional in its
minimum degree, and with arresto mayor in its minimum
and medium degrees if it shall constitute a less grave
crime.
"He who in violation of the regulations shall commit a
crime through simple imprudence or negligence shall incur
the penalty of arresto mayor in its medium and maximum
degrees.
"In the application of these penalties the courts shall
proceed according to their discretion, without being subject
to the rules prescribed in article 81.
"The provisions of this article shall not be applicable if
the penalty prescribed for the crime is equal to or less than
those contained in the first paragraph thereof, in which

case the courts shall apply the next one thereto in the
degree which they may consider proper."
The word "malice" in this article is manifestly
substantially equivalent to the words "criminal intent," and
the direct inference from its provisions is that the
commission of the acts contemplated therein, in the
absence of malice (criminal intent), negligence, and
imprudence, does not impose any criminal liability on the
actor.
The word "voluntary" as used in article 1 of the Penal
Code would seem to approximate in meaning the word
"willful" as used in English and American statutes to
designate a form of criminal intent. It has been said that
while the word "willful" sometimes means little more than
intentionally or designedly, yet it is more frequently
understood to extend a little further and approximate the
idea of the milder kind of legal malice; that is, it signifies
an
498

evil intent without justifiable excuse. In one case it was

said to mean,. as employed in a statute in contemplation,
"wantonly" or "causelessly;" in another, "without
reasonable grounds to believe the thing lawful." And Shaw,
C. J., once said that ordinarily in a statute it means "not
merely Voluntarily' but with a bad purpose; in other words,
corruptly." In English and the American statutes defining
crimes "malice," "malicious," "maliciously," and "malice
aforethought" are words indicating intent, more purely
technical than "willful" or "willfully," but "the difference
between them is not great;" the word "malice" not often
being understood to require general malevolence toward a
particular individual, and signifying rather the intent from
which flows any unlawful and injurious act committed
without legal justification. (Bishop's New Criminal Law,
vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute,
setting out a condition in the definition of a crime that it be
committed "voluntarily," "willf ully," "maliciously," "with
malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think
that reasoning from general principles it will always be
found that, with the rare exceptions hereinafter mentioned,
to constitute a crime evil intent must combine with an act.

Mr. Bishop, who supports his position with numerous
citations from the decided cases, thus forcefully presents
this doctrine:
"In no one thing does criminal jurisprudence differ more
from civil than in the rule as to the intent. In controversies
between private parties the quo animo with which a thing
was done is sometimes important, not always; but crime
proceeds only from a criminal mind. So that—
"There can be no crime, large or small, without an evil
mind. In other words, punishment is the sequence of
wickedness, without which it can not be. And neither in
philosophical speculation nor in religious or moral
sentiment would any people in any age allow that a man
should be
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VOL. 15, MARCH 19, 1910. 499

deemed guilty unless his mind was so. It is therefore a

principle of our legal system, as probably it is of every
other, that the essence of an offense is the wrongful intent,
without which it can not exist. We find this doctrine
confirmed by—
"Legal maxims.—The ancient wisdom of the law, equally
with the modern, is distinct on this subject. It consequently
has supplied to us such maxims as Actus non facit reum
nisi mens sit rea, 'the act itself does not make a man guilty
unless his intention were so;' Actus me invito factus non est
meus actus, 'an act done by me against my will is not my
act;' and others of the like sort. In this, as just said,
criminal jurisprudence differs from civil. So also—
"Moral science and moral sentiment teach the same
thing. 'By reference to the intention, we inculpate or
exculpate others or ourselves without any respect to the
happiness or misery actually produced, Let the result of an
action be what it may, we hold a man guilty simply on the
ground of intention; or, on the same ground, we hold him
innocent.' The calm judgment of mankind keeps this
doctrine among its jewels. In times of excitement, when
vengeance takes the place of justice, every guard around
the innocent is cast down. But with the return of reason
comes the public voice that where the mind is pure, he who
differs in act from his neighbors does not offend. And—
"In the spontaneous judgment which springs from the
nature given by God to man, no one deems another to
deserve punishment for what he did from an upright mind,

destitute of every form of evil. And whenever a person is
made to suffer a punishment which the community deems
not his due, so far from its placing an evil mark upon him,
it elevates him to the seat of the martyr, Even infancy
Itself spontaneously pleads the want of bad intent in
justification of what has the appearance of wrong, with the
utmost confidence that the plea, if its truth is credited, will
be accepted as good. Now these facts are only the voice of
nature uttering one of her immutable truths. It is,
500

then, the doctrine of the law, superior to all other doctrines,

because first in nature from which the law itself proceeds,
that no man is to be punished as a criminal unless his
intent is wrong." (Bishop's New Criminal Law, vol. 1, secs.
286 to 290.)
Compelled by necessity, "the great master of all things,"
an apparent departure from this doctrine of abstract justice
results from the adoption of the arbitrary rule that
Ignorantia juris non excusat ("Ignorance of the law excuses
no man"), without which justice could not be administered
in our tribunals; and compelled also by the same doctrine of
necessity, the courts have recognized the power of the
legislature to forbid, in a limited class of cases, the doing of
certain acts, and to make their commission criminal
without regard to the intent of the doer. Without discussing
these exceptional cases at length, it is sufficient here to say
that the courts have always held that unless the intention
of the lawmaker to make the commission of certain acts
criminal without regard to the intent of the doer is clear
and beyond question the statute will not be so construed
(cases cited in Cyc., vol. 12, p. 158, notes 76 and 77) ; and
the rule that ignorance of the law excuses no man has been
said not to be a real departure from the law's fundamental
principle that crime exists only where the mind is at fault,
because "the evil purpose need not be to break the law, and
it suffices if it is simply to do the thing which the law in
fact forbids." (Bishop's New Criminal Law, sec. 300, and
cases cited.)
But, however this may be, there is no technical rule, and
no pressing necessity therefor, requiring mistake in fact to
be dealt with otherwise than in strict accord with the
principles of abstract justice. On the contrary, the maxim
here is Ignorantia facti excusat ("Ignorance or mistake in

point of fact is, in all cases of supposed offense, a sufficient
excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in
every crime, any such mistake of fact as shows the act
committed to have proceeded from no sort of evil in the
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mind necessarily relieves the actor from criminal liability,

provided always there is no fault or negligence on his part;
and as laid down by Baron Parke, "The guilt of the accused
must depend on the circumstances as they appear to him."
(Reg. vs. Thurborn, 1 Den. C. C., 387; P. vs. Anderson, 44
Cal., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y.,
509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox
C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28
Tex. Ap., 387.) That is to say, the question as to whether he
honestly, in good faith, and without fault or negligence fell
into the mistake is to be determined by the circumstances
as they appeared to him at the time when the mistake was
made, and the effect which the surrounding circumstances
might reasonably be expected to have on his mind, in
forming the intent, criminal or otherwise, upon which he
acted.
"If, in language not uncommon in the cases, one has
reasonable cause to believe the existence of facts which will
justify a killing—or, in term's more nicely in accord with
the principles on which the rule is founded, if without fault
or carelessness he does believe them—he is legally guiltless
of the homicide; though he mistook the facts, and so the life
of an innocent person is unfortunately extinguished. In
other words, and with reference to the right of self-defense
and the not quite harmonious authorities, it is the doctrine
of reason, and sufficiently sustained in adjudication, that
notwithstanding some decisions apparently adverse,
whenever a man undertakes self-defense, he is justified in
acting on the facts as they appear to him. If, without fault
or carelessness, he is misled concerning them, and defends
himself correctly according to what he thus supposes the
facts to be, the law will not punish him though they are in
truth otherwise, and he has really no occasion for the
extreme measure." (Bishop's New Criminal Law, sec. 305,
and large array of cases there cited.)
The common illustration in the American and English

textbooks of the application of this rule is the case where a
man, masked and disguised as a footpad, at night and
502

on a lonely road, "holds up" his friend in a spirit of

mischief, and with leveled pistol demands his money or his
life, but is killed by his friend under the mistaken belief
that the attack is a real one, that the pistol leveled at his
head is loaded, and that his life and property are in
imminent danger at the hands of the aggressor. No one will
doubt that if the facts were such as the slayer believed
them to be he would be innocent of the commission of any
crime and wholly exempt from criminal liability, although
if he knew the real state of the facts when he took the life
of his friend he would undoubtedly be guilty of the crime of
homicide or assassination. Under such circumstances, proof
of his innocent mistake of the facts overcomes the
presumption of malice or criminal intent, and (since malice
or criminal intent is a necessary ingredient of the "act
punished by law" in cases of homicide or assassination)
overcomes at the same time the presumption established in
article 1 of the code, that the "act punished by law" was
committed "voluntarily."
Parsons, C. J., in the Massachusetts court, once said:
"If the party killing had reasonable grounds for believing
that the person slain had a felonious design against him,
and under that supposition killed him, although it should
afterwards appear that there was no such design, it will
not be murder, but it will be either manslaughter or
excusable homicide, according to the degree of caution used
and the probable grounds of such belief." (Charge to the
grand jury in Selfridge's case, Whart. Hom., 417, 418,
Lloyd's report of the case, p. 7.)
In this case, Parker, J., charging the petit jury, enforced
the doctrine as follows:
"A, in the peaceable pursuit of his affairs, sees B rushing
rapidly toward him, with an outstretched arm and a pistol
in his hand, and using violent menaces against his life as
he advances. Having approached near enough in the same
attitude, A, who has a club in his hand, strikes B over the
head before or at the instant the pistol is discharged; and of
the wound B dies. It turns out the pistol was loaded
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with powder only, and that the real design of B was only to
terrify A. Will any reasonable man say that A is more
criminal than he would have been if there had been a bullet
in the pistol? Those who hold such doctrine must require
that a man so attacked must, before he strikes the
assailant, stop and ascertain how the pistol is loaded—a
doctrine which would entirely take away the essential right
of selfdefense. And when it is considered that the jury who
try the cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be
supposed to flow from this principle." (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme
court of Spain, cited by Viada, a few of which are here set
out in full because the facts are somewhat analogous to
those in the case at bar.
"QUESTION III. When it is shown that the accused was
sitting at his hearth, at night, in company only of his wife,
without other light than that reflected from the fire, and
that the man with his back to the door was attending to the
fire, there suddenly entered a person whom he did not see
or know, who struck him one or two blows, producing a
contusion on the shoulder, because of which he turned,
seized the person and took from him the stick with which
he had undoubtedly been struck, and gave the unknown
person a blow, knocking him to the floor, and afterwards
striking him another blow on the head, leaving the
unknown lying on the floor, and left the house. It turned
out the unknown person was his father-in-law, to whom he
rendered assistance as soon as he learned his identity, and
who died in about six days in consequenee of cerebral
congestion resulting from the blow. The accused, who
confessed the facts, had. always sustained pleasant
relations with his father-in-law, whom he visited during his
sickness, demonstrating great grief over the occurrence.
Shall he be considered free from criminal responsibility, as
having acted in self-defense, with all the circumstances
related in paragraph 4, article 8, of the Penal Code? The
criminal branch of the Audienda of Valladolid f ound that
he was an illegal
504

aggressor, without sufficient provocation, and that there

did not exist rational necessity for the employment of the
force used, and in accordance with articles 419 and 87 of
the Penal Code condemned him to twenty months of
imprisonment, with accessory penalty and costs. Upon
appeal by the accused, he was acquitted by the supreme
court, under the following sentence: 'Considering, from the
facts found by the sentence to have been proven, that the
accused was surprised from behind, at night, in his house
beside his wife, who was nursing her child, was attacked,
struck, and beaten, without being able to distinguish the
person or persons attacking, nor the instruments with
which they might have executed their criminal intent,
because of the fact that the attack was made from behind
and because there was no other than fire light in the room,
and considering that in such a situation and when the acts
executed demonstrated that they might endanger his
existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should
have defended himself, and in doing so with the same stick
with which he was attacked, he did not exceed the limits of
self-defense, nor did he use means which were not
rationally necessary, particularly because the instrument
with which he killed was the one which he took from his
assailant, and was capable of producing death, and in the
darkness of the house and the consternation which
naturally resulted from such strong aggression, it was not
given him to know or distinguish whether there was one or
more assailants, nor the arms which they might bear, nor
that which they might accomplish, and considering that the
lower court did not find f rom the accepted f acts that there
existed rational necessity for the means employed, and that
it did not apply paragraph 4 of article 8 of the Penal Code,
it erred, etc.' (Sentence of supreme court of Spain, February
28, 1876.)" (Viada, Vol. I, p. 266.)
"QUESTION XIX. A person returning, at night, to his
house, which was situated in a retired part of the city, upon
arriving at a point where there was no light, heard
505
VOL. 15, MARCH 19,. 1910. 505

the voice of a man, at a distance of some 8 paces, saying:

'Face down, hand over your money!' because of which, and
almost at the same moment, he fired two shots from his
pistol, distinguishing immediately the voice of one of his
friends (who had before simulated a different voice) saying,
'Oh! they have killed me/ and hastening to his assistance,
finding the body lying upon the ground, he cried, 'Miguel,
Miguel, speak, for God's sake, or I am ruined/ realizing that
he had been the victim of a joke, and not receiving a reply,
and observing that his friend was a corpse, he retired from
the place. Shall he be declared exempt in toto from
responsibility as the author of this homicide, as having
ácted in just self-defense under the circumstances defined
in paragraph 4, article 8, Penal Code ? The criminal branch
of the Audiencia of Malaga did not so find, but only found
in f avor of the accused two of the requisites of said article,
but not that of the reasonableness of the means employed
to repel the attack, and, therefore, condemned the accused
to eight years and one day of prisión mayor, etc. The
supreme court acquitted the accused on his appeal from
this sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity
of the person calling to him, and that under the
circumstances, the darkness and remoteness, etc., the
means employed were rational and the shooting justifiable.
(Sentence supreme court, March 17, 1885.)" (Viada, Vol. I,
p. 136.)
"QUESTION VI. The owner of a mill, situated in a
remote spot, is awakened, at night, by a large stone thrown
against his window—at this, he puts his head out of the
window and inquires what is wanted, and is answered 'the
delivery of all of his money, otherwise his house would be
burned'—because of which, and observing in an alley
adjacent to the mill four individuals, one of whom
addressed him with blasphemy, he fired his pistol at one of
the men, who, on the next morning was found dead on the
same spot. Shall this man be declared exempt from
criminal responsibility as having acted in just self-defense
with all of the requisities of law? The criminal branch of
the Audiencia of
506

Zaragoza finds that there existed in favor of the accused a

majority of the requisites to exempt him from criminal
responsibility, but not that of reasonable necessity for the

means, employed, and condemned the accused to twelve
months of prisión correccional for the homicide committed.
Upon appeal, the supreme court acquitted the condemned,
finding that the accused, in firing at the malefactors, who
attacked his mill at night in a remote spot by threatening
robbery and incediarism, was acting in just self-defense of
his person, property, and family. (Sentence of May 23,
1877)." (I Viada, p. 128.)
A caref ul examination of the f acts as disclosed in the
case at bar convinces us that the defendant Chinaman
struck the fatal blow alleged in the information in the firm
belief that the intruder who forced open the door of his
sleeping room was a thief, from whose assault he was in
imminent peril, both of his life and of his property and of
the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to
the defendant at the time, he acted in good faith, without
malice, or criminal intent, in the belief that he was doing
no more than exercising his legitimate right of self-defense;
that had the facts been as he believed them to be he would
have been wholly exempt from criminal liability on account
of his act; and that he can not be said to have been guilty of
negligence or recklessness or even carelessness in falling
into his mistake as to the facts, or in the means adopted by
him to defend himself from the imminent danger which he
believed threatened his person and his property and the
property under his charge.
The judgment of conviction and the sentence imposed by
the trial court should be reversed, and the defendant
acquitted of the crime with which he is charged and his bail
bond exonerated, with the costs of both instances de oficio,
So ordered.
Johnson, Moreland, and Elliott, JJ., concur.

Arellano, C. J,, and Mapa, J., dissent.
507
VOL. 15, MARCH 13, 1910. 507

United States vs. Pau Te Chin.
TORRES, J., dissenting:
The writer, with due respect to the opinion of the majority

of the court, believes that, according to the merits of the
case, the crime of homicide by reckless negligence, defined
and punished in article 568 of the Penal Code, was
committed, inasmuch as the victim was willfully

(voluntariamente) killed, and while the act was done
without malice or criminal intent it was, however, executed
with real negligence, for the acts committed by the
deceased could not warrant the aggression by the
defendant under the erroneous belief on the part of the
accused that the person who assaulted him was a
malefactor; the defendant therefore incurred responsibility
in attacking with a knife the person who was accustomed
to enter said room, without any justifiable motive.
By reason of the nature of the crime committed, in the
opinion of the undersigned the accused should be sentenced
to the penalty of one year and one month of prisión
correccional, to suffer the accessory penalties provided in
article 61, and to pay an indemnity of P1,000 to the heirs of
the deceased, with the costs of both instances, thereby
reversing the judgment appealed from.
Judgment reversed; defendant acquitted.
_______________
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6/19/2018 PHILIPPINE REPORTS ANNOTATED VOLUME 015

[No. 5272. March 19, 1910.]

THE UNITED STATES, plaintiff and appellee, vs. AH

JUSTIFIABLE HOMICIDE; SELF-DEFENSE; MlSTAKE

VOL. 15, MARCH 19, 1910. 489

United States vs. Ah Chong.

Code, a person voluntarily committing an act incurs criminal

APPEAL from a judgment of the Court of First Instance of

The f acts are stated in the opinion of the court.

The evidence as to many of the essential and vital facts in

490 PHILIPPINE REPORTS ANNOTATED

United States vs. Ah Chong.

were in the habit of reinforcing this somewhat insecure

VOL. 15, MARCH 19, 1910. 491

employed as cook; and as defendant alleges, it was because

for his personal protection.

492 PHILIPPINE REPORTS ANNOTATED

homicide, with extenuating circumstances, and sentenced

do a wrongful act, in the exercise of his lawful right of

* * * * * * *

"4. He who acts in defense of his person or rights, provided

"(1) Illegal .aggression.

Under these provisions we think that there can be no doubt

VOL. 15, MARCH 19, 1910. 493

of the knife to defend his person or his property or the

494 PHILIPPINE REPORTS ANNOTATED

596; Yates vs. People, 32 N. Y., 509; Isham vs. State, 38

the crime or offense must be committed with malice or with

VOL. 15, MARCH 19, 1910. 495

so little difference between a disposition to do a great harm

Article 1 of the Penal Code is as follows:

496 PHILIPPINE REPORTS ANNOTATED

responsibility when the act which was actually intended to

May 31, 1882, in which it made use of the following

VOL. 15, MARCH 19, 1910. 497

That the author of the Penal Code deemed criminal intent

those contained in the first paragraph thereof, in which

498 PHILIPPINE REPORTS ANNOTATED

evil intent without justifiable excuse. In one case it was

to constitute a crime evil intent must combine with an act.

VOL. 15, MARCH 19, 1910. 499

deemed guilty unless his mind was so. It is therefore a

deserve punishment for what he did from an upright mind,

500 PHILIPPINE REPORTS ANNOTATED

then, the doctrine of the law, superior to all other doctrines,

here is Ignorantia facti excusat ("Ignorance or mistake in

VOL. 15, MARCH 19, 1910. 501

mind necessarily relieves the actor from criminal liability,

The common illustration in the American and English

502 PHILIPPINE REPORTS ANNOTATED

on a lonely road, "holds up" his friend in a spirit of

VOL. 15, MARCH 19, 1910. 503

504 PHILIPPINE REPORTS ANNOTATED

aggressor, without sufficient provocation, and that there

VOL. 15, MARCH 19,. 1910. 505

the voice of a man, at a distance of some 8 paces, saying:

506 PHILIPPINE REPORTS ANNOTATED

Zaragoza finds that there existed in favor of the accused a

responsibility, but not that of reasonable necessity for the