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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 12564 September 6, 1917

THE UNITED STTES,plaintiff-appellee,vs.!USTINO CORTES " MCSIT,defendant-appellant.

G. E. Jose for appellant.Acting Attorney-General Paredes for appellee.

RE##NO, C.J.$

This case has come to us on appeal from a ud!ment of the Court of "irst #nstance of the cit$ of Manila %hereb$ "austino Cortes%as convicted of the crime of homicide and sentenced to the penalt$ of &' $ears ( months and one da$ of reclusion temporal %ith

its accessor$ penalties, to indemnif$ the heirs of Pablo Montevir!en in the sum of P&,))) and to pa$ the costs.

The facts are as follo%s* "austino Cortes %ho had been livin! in concubina!e %ith Marciana Bo+mente separated from her threeda$s before the crime, left the house the$ had been occup$in! and %ent to live in another one nearb$. #n front of said second house,on the ni!ht of Au!ust &, &&, the %oman Bo+mente and her son Pablo Montevir!en appeared and roundl$ insulted thedefendant, after %hich Montevir!en challen!ed him to come do%n into the street. Cortes came do%n and there a stru!!le of diversesuccess too/ place bet%een him and Montevir!en until Cortes, havin! overpo%ered his anta!onist, %as seen to !et up his ri!hthand covered %ith blood and his left !raspin! a fan /nife. Montevir!en also !ot up, dra!!ed himself alon! ver$ painfull$ until finall$he collapsed, fell do%n and shortl$ after%ards died unconscious. 0eceased had a deep %ound in the base of the nec/ from %hichblood flo%ed in abundance. 1The cause of death,1 sa$s the medical certificate, 1%as a hemorrha!e produced b$ a %ound in the ri!htcarotid arter$ and in the inner u!ular vein. The bod$ bore seven other %ounds also.1

"austino Cortes %as char!ed %ith the commission of the crime of homicide and after hearin! the %itnesses, most of theme$e%itnesses, the court %as convinced of his !uilt %herefore it sentenced him for said crime, committed %ith neither e2tenuatin! nora!!ravatin! circumstances, to the penalt$ aforestated.

The defendant appealed and, in this second instance, alle!ed that the trial court erred in not ta/in! account, for the purpose ofreducin! the penalt$, of the e2tenuatin! circumstance of immediate provocation.

The appellant is ri!ht in this contention3 but the provocation should not be estimated accordin! to the statement of facts made b$appellant, to %it, that Marciana Bo+mente %ent up into his house and %hile he %as asleep, struc/ him in the face %ith her sabot or%ooden shoe, and %hen he a%o/e, cau!ht hold of his shirt bosom and tried to dra! him outside, sa$in! 1Come here41 #t5s $our hourno%.1 That testimon$ not onl$ is not corroborated but also conflicts %ith other testimon$ declarin! that the Bo+mente %oman did notmove from the street from %hence she insulted the defendant 6 it does not appear that she entered the house.

The proof of immediate provocation is found in the testimon$ of the %itness for the prosecution 7oa8uin Bas, an e$e%itness from itsbe!innin!, truthful and impartial, as sho%n b$ other testimon$. 9e told of the insults uttered b$ the mother and son in front of thedefendant5s room3 he sa% upon the deceased5s challen!e, the defendant come do%n from his house3 and he %itnessed the stru!!lein all its vicissitudes. :ithout those insults and threats the defendant %ould not have come do%n and the stru!!le %ould not haveta/en place.

Moreover the appellant alle!es that the trial ud!ed erred also in not !ivin! due %ei!ht to the e2tenuatin! circumstance of unla%fula!!ression.

#n respect to this point the lo%er court did not err. #t is alread$ a %ell-settled rule, firml$ established in man$ decisions interpretativeof article ( of the Penal Code, that, after the accused accepts a challen!e, thereb$ placin! himself in an unla%ful status and one offorce, the prior a!!ression of his opponent, %hich, as it %as not une2pected, could not catch him off his !uard, e2cludes thecondition of la%ful defense, for the challen!e b$ itself e2cludes the classification of self-defense that, totall$ or partiall$, e2emptsfrom liabilit$ ;decision b$ the supreme court of 3 or, as set forth in another decision b$ the same court ;thatof "ebruar$ , &(>, the ri!ht of la%ful self-defense cannot validl$ be set up in behalf of a person %ho voluntaril$ e2poses hisperson to the conse8uences of a hand to hand stru!!le %ith his adversar$ in %hich, for the reason that each of the combatants has

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no other intention than to inure the other, the first act of force, come from %hichever of the t%o it ma$, cannot be held but to be anaccident of the fi!ht itself and in no%ise %hatever as an un%arranted and une2pected a!!ression %hich alone can le!ali+e self-defense.

Ta/in! into consideration the e2tenuatin! circumstance defined in para!raph ' of article of the Penal Code, the penalt$ should beimposed in the minimum de!ree.

:ith the understandin!, therefore, that the penalt$ imposed of reclusion temporal shall be & $ears and one da$ of imprisonment,the ud!ment appealed from is in all other respects affirmed and the costs of this instance shall be a!ainst the appellant.