[No. 18660.

December 22, 1922]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff

and appellee, vs. FELIPE DELIMA, defendant and
appellant.

CRIMINAL LAW; HOMICIDE; PERFORMANCE OF A

DUTY.—A policeman finds a fugitive from jail and demands
his surrender. The latter, instead of doing so, attacks the
policeman with a piece of bamboo, pointed in the shape of a
lance. The policeman fires his arm, but does not hit him. The
criminal runs away without parting with his weapon. The
policeman goes after him and again fires against him, this time
hitting and killing him. Held; That the policeman did not
commit any crime, that that killing was done in the
performance of a duty, and, therefore, under article 8, No. 11,
of the Penal Code, he must be acquitted.

APPEAL from a judgment of the Court of First Instance of

Samar. Capistrano, J.
The facts are stated in the opinion of the court.
Tancinco & Rosales for appellant.
Attorney-General Villa-Real for appellee.

739

VOL. 46, DECEMBER 29, 1922 739

People vs. Alcala

ROMUALDEZ, J.:

Lorenzo Napilon had escaped from the jail where he was

serving sentence.
Some days afterwards the policeman Felipe Delima, who
was looking f or him, f ound him in the house of Jorge
Alegria, armed with a pointed piece of bamboo in the shape
of a lance, and demanded his surrender. The f ugitive
answered with a stroke of his lance. The policeman dodged
it, and to impose his authority fired his revolver, but the
bullet did not hit him. The criminal ran away, without
parting with his weapon. The peace officer went after him
 and fired again his revolver, this time hitting and killing
him.
The policeman was tried and convicted for homicide and
sentenced to reclusión temporal and the accessory
penalties. He appeals from that judgment which must be
reversed.
That killing was done in the performance of a duty. The
deceased was under the obligation to surrender, and had no
right, after evading service of his sentence, to commit
assault and disobedience with a weapon in the hand, which
compelled the policeman to resort to such an extreme
means, which, although it proved to be fatal, was justified
by the circumstances.
Article 8, No. 11, of the Penal Code being considered,
Felipe Delima committed no crime, and he is hereby
acquitted with the costs de oficio. So ordered.

Araullo, C. J., Street, Malcolm, Avanceña, Villamor,

Ostrand, and Johns, JJ., concur.

Judgment reversed, defendant acquitted.

_______________

© Copyright 2019 Central Book Supply, Inc. All rights reserved.