EN BANC

[G.R. No. 34283. September 11, 1931.]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs. TELESFORO ALVIAR, defendant-appellant.

Conrado V. Singson, for appellant.

Attorney-General Jaranilla, for appellee.

SYLLABUS

1. CRIMINAL LAW; HOMICIDE; SELF-DEFENSE; INCOMPLETE

DEFENSE. — When the perpetration of a homicide is admitted by an accused
person, he must, in order to exculpate himself on the ground that he acted
in self-defense, supply proof which is credible in itself and sufficient to
engender a reasonable doubt of his guilt. In a case where the proof consisted
mainly in the written statement of the accused made shortly after the
homicide was committed and his own testimony given at the trial, and these
two statement differed in material particular, the court refused to give entire
credence to either, and conceded to the accused the benefit of incomplete
self-defense only.

DECISION

STREET, J : p

This appeal has been brought to reverse a judgment of the Court of

First Instance of the Province of Cagayan, finding the appellant, Telesforo
Alviar, guilty of the offense of homicide and sentencing him to undergo
imprisonment for fourteen years, eight months and one day, reclusion
temporal, with the accessory penalties prescribed by law, and requiring him
to indemnify the heirs of the deceased (Nicolas Alviar) in the sum of P500, as
well as to pay the costs of prosecution.
At about 7 p. m. on the night of January 5, 1930, Rufino Usigan, a
policeman of Buguey, Cagayan, while passing along a road or street, in the
municipality of Buguey, heard groans coming from an injured person. Upon
stopping to investigate he found Nicolas Alviar lying in or near the way. Upon
inquiring what was the matter, Nicolas replied that he and Telesforo Alviar
had had a fight, and that he was wounded. Usigan accordingly conveyed
Nicolas to the municipal building, where examination was made into the
nature of his injuries. Upon examination by the local sanitary officer, it was
found that Nicolas had received two wounds, the most serious being a cut in
the right breast, 8½ centimeters in length, was 1 centimeter wide, and 2
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 centimeters in depth. The injured man, after being conveyed to the local
hospital, succumbed from peritonitis somewhat less than seventeen days
from the time when the wounds were inflicted.
On January 6, 1930, the chief of police of the municipality of Buguey
went to the hospital and took what was offered in evidence as the dying
declaration of the deceased (Exhibit A). We are of the opinion that this
declaration is inadmissible, inasmuch as it does not appear from said
declaration, not from other proven facts, that the declarant believed at the
time that the wounds he had received would result in his death. It merely
appears that he was weak, probably a result of the loss of blood; and but for
the complications which ensued more than two weeks later, the deceased
might possibly have recovered and at least he may well have entertained
hopes of recovery. In other words it does not appear that the hope of
recovery was extinct. This makes the declaration inadmissible.
The case for the prosecution must therefore be rested upon other
evidence than the declaration of the deceased and this evidence consists in
the first place of the signed confession given by the appellant himself on
January 6, 1930, in connection with his own testimony given at the trial. In
both these statements he admits having inflicted the wounds that resulted
in the death of Nicolas Alviar, but attempts to exculpate himself on the
ground that he acted in self-defense. We find, however, that these two
statements, the written confession and the testimony given by the accused
at the trial, are materially different, so much so that both cannot be entirely
true; and after weighing the statements, we are inclined to attach greater
weight to the written confession of the accused since it was given when the
facts were fresh in his mind and before he had had time to weight their
effect.
It appears that the accused and the deceased were cousins and that,
upon the evening when this homicide occurred, they had been together on
an errand to deliver a fighting cock, the property of Nicolas, to a neighbor,
one Pedro Palapos. It was after the two companions had left the house of this
neighbor that the quarrel ensued which resulted in the homicide.
The cause of the quarrel appears to have arisen from a reference to
certain offenses for which Nicolas had been prosecuted in the past; and the
appellant asserts that Nicolas drew his bolo and attempted to assault the
appellant, whereupon the latter snatched the bolo from the deceased and
inflicted the fatal wounds. The circumstances that the wounds referred to
were inflicted with a bolo belonging to the deceased is common to both the
confession and the statement of the appellant in court as a witness; and in
the state of the proof we are constrained to accept this fact. That there was
unlawful aggression upon the part of the deceased should therefore be
accepted as proved. But it does not appear that the infliction of the wounds
which caused the death of the deceased was a necessary and proper means
to the protection of the appellant. In view of the fact that the deceased was
then unarmed, from the loss of his bolo, the use made of the same weapon
by the accused was unjustifiable. Furthermore, the fact that one of the
wounds appearing on the body of the deceased was evidently inflicted from
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 behind is inconsistent with the idea that the appellant was entirely justified
in the means and measures used by him to repel the alleged attack.
The most, therefore, that we are able to concede to the appellant is
that he is entitled to the benefit of the consideration of incomplete self-
defense. When the perpetration of a homicide is admitted, it is incumbent
upon the individual who inflicted the fatal injuries to prove the facts which
serve as his exculpation. In order to establish this defense the proof
submitted should be reasonable in itself and sufficiently convincing at least
to engender a reasonable doubt on the fundamental of the case. In the case
before us the appellant is not entitled to the benefit of the consideration of
complete self-defense, because of the inconsistencies between his
confession and his statement as a witness in court, and the manifest
impossibilities and falsehoods contained in the latter statement. The trial
court was, we think, well justified in discrediting the testimony of Emeterio
Pagador, a witness for the defense, who pretended to have seen the fight
and who (strange to relate) saw Nicolas Alviar run away, although he was
later found by the policeman Usigan in a helpless state near the place where
the altercation occurred.
From what has been said, conceding to the accused the benefit of
incomplete self-defense, and lowering the penalty by one degree, the
appellant is sentenced to undergo imprisonment for eight years and one
day, prision mayor, instead of fourteen years, eight months and one day,
reclusion temporal, as ordered by the trial court. In other respects the
judgment is affirmed. So ordered, with costs against the appellant.
Avanceña, C.J., Johnson, Malcolm, Villamor, Ostrand, Romualdez, Villa-
Real and Imperial, JJ., concur.

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