No. 1744.

July 19, 1938]

PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs. ANASTACIG APOLINAR,

defendant and appellant
PENAL LAW: HOMICIDE; DEFENSE OF PROPERTY AS EXTENUATION FOR CRIMINAL
LIABILITY. — The deceased, upon receiving the fatal blow, was carrying on his arms a sack
of palay coming from the land tilled by the defendant. I[t is said: That the right to property
is not of such umportance as right to life, and defense of property can be invoked as a
justifying circumstance only

when it is coupled with an attack on the person of one erttrusted with said property. (from
the Decisions of the Supreme Court of Spain)

APPEAL from a judgment of the Court of First Instance of Pangasinan. Felix J. The facts are
stated in the opinion of the court,

HONTIVEROS, ./.,

Midnight of December 22, 1936, the defendant and appellant Anastacio Apolinar alias
Atong was at that time the occupant of a parcel of land owned by Joaquin Gonzales in
Papallasen, La Paz, Umingan, Pangasinan. Armed with a shotgun, Atong was looking over
said land when he observed that there was a man carrying a bundle on his shoulder.
Believing that he was a thief (of palay), the defendant called his attention but he ignored
him, Thereafter, the defendant fired in the air and then at the person, who however
managed to flee. The person, who would later be tdentified as Domingo Petras, was able to
get back to his house and consequently narrated to Angel Natividad, the barrio chief, that
he had been wounded in the back by a shotgun for getting palay from the part of the land
tilled by the appellant Atong. He then showed the two wounds - one in each side of the
spinal column - which wounds were circular in form and a

little bigger than a quarter of an inch, according to the medical report of Dr. Mananquil,
from which it could be inferred that the shotgun of the defendant was loaded with... .

The defendant surrendered to the authorities immediately after the incident and gave a
sworn statement (Exhibit F) before the Justice of Peace of Umingan on December 23, 1936.
He stated that on that night, upon seeing a person coming from the water, carrying a sack
filled with palay, he shouted to ask who it was but since there was no response, he fired in
the air. Then, he asked again, and since the man gave no response still and instead tured
around and started to flee, he fired at him, The defendant said nothing regarding any
aggression (earlier) committed or attempted by said man toward the barrio chief Bonifacio
Mendones, which aggression is now the basis of his defense before the Court of First
Instance of Pangasinan when this issue was raised. Said defense, therefore, is untenable,
Moreover, according to the defendant and his witnesses, the aggression against Mendones
was carried out by said Petras
with a bolo, In the present case, no bolo has been presented before the Court a guo, which
would have supported the defense if indeed the deceased had been armed that night,

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Evidence shows that upon getting seriously wounded, he was carrying the sack of palay on
his arms coming from the land tilled by the | defendant, However, this is not sufficient for
the defendani to be justified in shooting the deceased. The right to property is not of such
importance as right to life, and defense of property can be invoked as a justifying
circumstance only when it is coupled with an attack on the person of one entrusted with
said property,

Although legitimate defense cannot be appreciated in favor of the defendant in the case at
bar, the extenuating circumstances of obfuscation can nonetheless be considered in his
favor. (and that of voluntary surrender to the authorities. The presence of these two
circumstances without any aggravating circumstance reduces the sentence to the next
lower penalty for the sentenced crime, i.¢. prisién mayor, pursuant to the proyisigns of par.
5 of Article 63 of the Revised Penal Code. Considering the facts of the case, we decide that
judgment must be modified. We believe that it must be modified by imposing on the
defendant and appellant an indeterminate Penalty with a minimum of 2 years of prision
correccional and a maximum of 8 years and one day of prision mayor With this
modification, we affirm all other respects of the appealed decision with costs against
appellant. So ordered.

Horrilleno, Pres., Paras, imperial and Albert, MM... concur. Judgment modified