VOL.

74, JULY 27, 1943 257

People vs. Oanis and Galanta

order substituting the appellant as guardian of the property of

the minor, suggests the propriety and advisability of relieving
appellant as such guardian. (Gabriel vs. Sotelo, 2 Off. Gaz.,
172.)
The appellant also assigns as error the refusal of the trial
court to allow her to present an additional account and a final
account before her removal as guardian. We note in this
connection that the two accounts she presented to the court as
well as her proposed additional account consist mostly of items
that should be presented to and passed upon by the court in the
administration and settlement of the intestate of the deceased
rather than in this guardianship proceeding. As to the final
account, the trial court in the order appealed from did not
refuse to allow the appellant to present it. On the contrary, it is
understood that before the appellant could be relieved as
guardian of the property of her ward and her bond cancelled,
she has to present a final account covering the period from
January 1, 1940, to the date on which she delivers the
properties of the'ward to the new guardian.
The order of August 30, 1940, is affirmed, with the direction
made in the body of this decision regarding the institution by
the appellant of intestate proceedings for the settlement and
adjudication of the estate of the deceased Vicente Ribaya.
Appellant shall pay the costs.

Yulo, C. J., Moran, Paras, and Bocobo, JJ., concur.

Order of August 30, 1940, affirmed.

 
 
——————
 
 

[No. 47722.   July 27, 1943]

THE PEOPLE OF THE PHILIPPINES, plaintiff and appellee, vs.
ANTONIO Z. OANIS AND ALBERTO GALANTA, defendants and
appellants.

1.CRIMINAL LAW; MURDER.—Appellants Corporal Galanta and Chief of

Police Oanis were under instructions to arrest one, Balagtas, a
notorious criminal and an escaped convict, and, if overpowered, to get
him dead or alive. Proceeding to the suspected house, appellants went
into a room and on seeing a man sleeping with his back towards the
 door, simultaneously or successively fired at him with their .32 and
.45 caliber revolvers, without 'first making any reasonable inquiry as
to his identity. The victim turned out to be an innocent man, Tecson,
and not the wanted criminal. Held: That under the circumstances, the
crime committed by appellants is murder though specially mitigated
by circumstances presently to be mentioned.
2.ID.; ID.; CASE AT BAR DISTINGUISHED FROM UNITED STATES VS. AH CHONG  (15
PHIL., 488).—In support of the theory of nonliability by reason of
honest mistake of fact, appellants rely on the case of United States vs.
Ah Chong (15 Phil., 488). The maxim is ignorantia facti excusat, but
this applies only when the mistake is committed without fault or
carelessness. In the Ah Chong case, defendant therein after having
gone to bed was awakened by someone trying to open the door. He
called out twice, "who is there," but received no answer. Fearing that
the intruder was a robber, he leaped from his bed and called out
again, "if you enter the room I will kill you." But at that precise
moment, he was struck by a chair which had been placed against the
door and believing that he was then being attacked, he seized a
kitchen knife and struck and fatally wounded the intruder who
turned out to be his room-mate. A common illustration of innocent
mistake of fact is the case of a man who was masked as a footpad at
night and in a lonely road held up a friend in a spirit of mischief, and
with leveled pistol demanded his money or life. He was killed by his
friend under the mistaken belief

258

258 PHILIPPINE REPORTS ANNOTATED

People  vs.  Oanis   and Galanta

    that the attack was real, that the pistol level at his head was loaded
and that his life and property were in imminent danger at the hands
of the aggressor. In these instances, there is an innocent mistake of
fact committed without any fault or carelessness because the accused,
having no time or opportunity to make a further injury, and being
pressed by circumstances to act immediately, had no alternative but
to take the fact as they then appeared to him; and such facts justified
his act of killing. In the case, appeliants, unlike the accused in the
instances cited, found no circumstances whatsoever which would
press them to immediate action.  The person in the room being then
asleep, appeliants had ample time and opportunity to ascertain his
identity without hazard to themselves, and could even effect a
bloodless arrest if any reasonable effort to that end had been made, as
the victim was unarmed, according to one eyewitness. This, indeed, is
the only legitimate course of action for appellants to follow even if the
victim was really Balagtas, as they were instructed not to kill
Balagtas, at sight, but to arrest him, and to get him dead or alive only
if resistance or aggression is oddered him.
3.ID.; ID.; FORCE WHICH A PEACE OFFICES MAY USE IN MAKING ARREST.—
Although an officer in making a lawful arrest is justified in using such
force as is reasonably necessary to secure and detain the offender,
overcome his resistance, prevent his escape, recapture him if he
escapes, and protect himself from bodily harm (People vs. Delima, 46
 Phil., 738), yet he is never justified in using unnecessary force or in
treating him wanton violence, or in resorting to dangerous means
when the arrest could be affected otherwise (6 C. J. S., par. 13, p.
612). The doctrine is arrested in a new Rules of Court thus: "No
unnecessary of unreasonable force shall be used in making an arrest,
and the person arrested shall not be subject to any greater restraint
than is necessary for his detention." (Rule 109, sec. 2, par. 2) And a
peace officer cannot claim exemption from criminal liability if he uses
unnecessary force or violence in making  an arrest. (5 C. J., p. 753 U.
S. vs.  Mendoza, 2 Phil., 109). It may be true that Balagtas was a
notorious crimial, a life-termer, a fugitive from justice and a menace
to the peace of the community, but these facts alone constitute no
justification for killing him when, in effecting his arrest, he offers no
resistance, or in fact no resistance can be offered, as when he is
asleep. This, in effect, is the principle laid down, although upon
different facts, in United States vs. Donoso (3 Phil., 234, 242).
4.ID.; ID.; ID.; ARREST OF A NOTORIOUS CRIMINAL.—It is suggested that a
notorious criminal "must be taken by storm" without regard to his
right to life which he has by such notoriety already forfeited. This
Court may approve of this standard of official conduct where the
criminal offers resistance or does something which places his captors
in danger of imminent attack. Otherwise, this court cannot see how,
as in  the present  case,  the  mere fact of notoriety can make the life
of a criminal a mere trifle in the hands of the officers of the law.  
Notoriety rightly sup-lies a basis for redoubled official alertness and
vigilance; it never can justify precipitate action at the cost of human
life. Where, as here, the precipitate action of the appellants has cost
an innocent life and there exist no circumstances whatsoever to
warrant action of such character in the mind of a reasonably prudent
man, condemnation—not     condonation—should be the rule;
otherwise this Court would offer a premium to crime in the shelter of
official actuation.
5.ID.;   ID.;   KILLING   AT BAR IS INTENTIONAL AND NOT MERELY ACCIDENTAL.—
The crime committed   by   appellants   is   not   merely criminal
negligence, the killing being intentional and not accidental.   In
criminal negligence, the injury caused to another should be
unintentional, it being simply the   incident   of   another   act  
performed without   malice.    (People   vs.   Sara,   55 Phil., 939.)    In
the words of Viada. "para que se califique un hecho de imprudencia es
preciso que no haya mediado en él malicia ni intención alguna de
dañar; existiendo esa intención, deberá calificarse el hecho del delito
que ha producido, por más que no haya sido la  intención del agente el
causar un mal de tanta gravedad como el que se produjo."    (Tomo 7,
Viada Código Penal Comentado, 5." ed.. pág. 7.) And, as once held by
this court, a deliberate intent to do an unlawful act is essentially
inconsistent with, the idea of reckless imprudence (People vs.
Nanquil, 43 Phil. 232: People vs. Bindor. 56 Phil.. 16), and where such
unlawful act is wilfully done, a mistake in the identity of the intended
victim cannot be considered as reckless imprudence (People vs. Gona,
54 Phil., 605) to support a plea of mitigated liability.
6.ID.; ID.; TREACHERY; JUSTIFYING CIRCUM-

259
 VOL. 74, JULY 27, 1943 259
People vs. Oanis and Galanta

    STANCE DEFINED IN "ARTICLE 11, NO. 5, OF THE REVISED PENAL CODE.—As

the deceased was killed while asleep, the crime committed is murder
with the qualifying circumstance of alevosía. There is, however, a
mitigating circumstance of weight consisting in the incomplete
justifying circumstance defined in article 11, No. 5, of the Revised
Penal Code. According to such legal provision, a person incurs no
criminal liability when he acts in the fulfilment of a duty or in the
lawful exercise of a right or office. There are two requisites in order
that the circumstance may be taken as a justifying one: (a) that the
offender acted in the performance of a duty or in the lawful exercise of
a right; and (b) that the injury or offense committed be the necessary
consequence of the due performance of such dutv or the lawful
exercise of sjich right or office. In the instant case, onlv the first
requisite is present—appellants have acted in the performance of a
dutv. The second requisite is wanting for the crime by them com-
mitted be the necessarv conreouence of of a due performance of their
duty. Their duty was to arrest. Balagtas, or to get him dead or alive if
resistance is offered by him and they are overpowered. But through
impatience or over-anxiety or in their desire to take chances, they
have exceeded in the fulfilment of such dutv bv killing the person
whom they believed to be Balagtas without anv resistance from him
and without making any previous inquiry as to his identity. According
to article 69 of the Revised Penal Code, the penalty lower bv one or
two degrees than that prescribed by law shall, in such case, be
imposed.

APPEAL from a judgment of the Court of First Instance of

Nueva Ecija. Pablo, J.
The facts are stated in the opinion of the court.
Antonio Z. Oanis in his own behalf.
Maximo  L.  Valenzuela for appellant
Galanta.
Acting   Solicitor-General   Ibañez   and
Assistant Attorney Torres for appellee.

 
MORAN, J.:
Charged with the crime of murder of one Serapio Tecson, the
accused Antonio Z. Oanis and Alberto Galanta, chief of police of
Cabanatuan and corporal of the Philippine Constabulary,
respectively, were, after due trial, found guilty by the lower
court of homicide through reckless imprudence and were
sentenced each to an indeterminate penalty of from one year
and six months to two years and two months of prision
correccional and to indemnify jointly and severally the heirs of
the deceased in the amount of P1,000. Defendants appealed
separately from this judgment.
In the afternoon of December 24, 1938, Captain Godofredo
Monsod, Constabulary Provincial Inspector at Cabanatuan,
Nueva Ecija, received from Major Guido a telegram of the
following tenor: "Information received escaped convict Anselmo
Balagtas with bailarina named Irene in Cabanatuan get him
dead or alive." Captain Monsod accordingly called for his first
sergeant and asked that he be given four men. Defendant
corporal Alberto Galanta, and privates Nicomedes Oralo,
Venancio Serna and D. Fernandez, upon order of their
sergeant, reported at the office of the Provincial Inspector
where they were shown a copy of the above-quoted telegram
and a newspaper clipping containing a picture of Balagtas.
They were instructed to arrest Balagtas and, if overpowered, to
follow the instruction contained in the telegram. The same
instruction was given to the chief of police Oanis who was
likewise called by the Provincial Inspector. When the chief of
police was asked whether he knew one Irene, a bailarina, he
answered that he knew one of loose morals of the same name.
Upon request of the Provincial Inspector, the chief of police
tried to locate some of his men to guide the constabulary
soldiers in ascertaining Balagtas' whereabouts, and failing to
see anyone of them he voluntered to go with the party. The
Provincial Inspector divided the party into two groups with
defendants Oanis and Galanta, and private Fernandez taking
the route to Rizal street leading to the house where Irene was
supposedly living: When this group arrived at Irene's house,
Oanis approached one Brigida Mallare, who was then strip-
260

260 PHILIPPINE REPORTS ANNOTATED

People vs. Oanis and Galanta

ping banana stalks, and asked her where Irene's room was
Brigida indicated the place and upon further inquiry also said
that Irene was sleeping with her paramour. Brigida trembling,
immediately returned to her own room which was very near
that occupied by Irene and her paramour. Defendants Oanis
and Galanta then went to the room of Irene, and on seeing a
man sleeping with his back towards the door where they were,
simultaneously or successively fired at him with their .32 and
.45 caliber revolvers. Awakened by the gunshots, Irene saw her
paramour already wounded, and looking at the door where the
shots came, she saw the defendants still firing at him. Shocked
by the entire scene, Irene fainted; it turned out later that the
person shot and killed was not the notorious criminal Anselmo
Balagtas but a peaceful and innocent citizen named Serapio
Tecson, Irene's paramour. The Provincial Inspector, informed
of the killing, repaired to the scene and when he asked as to
who killed the deceased, Galanta, referring to himself and to
Oanis, answered: "We two, sir." The corpse was thereafter
brought to the provincial-hospital and upon autopsy by Dr.
Ricardo de Castro, multiple gunshot wounds inflicted by a .32
and a .45 caliber revolvers were found on Tecson's body which
caused his death.
These are the facts as found by the trial court and fully
supported by the evidence, particularly by the testimony of
Irene Requinea. Appellants gave, however, a different version
of the tragedy. According to Appellant Galanta, when he and
chief of police Oanis arrived at the house, the latter asked
Brigida where Irene's room was. Brigida indicated the place,
and upon further inquiry as to the whereabouts of Anselmo
Balagtas, she said that he too was sleeping in the same room.
Oanis went to the room thus indicated and upon opening the
curtain covering the door, he said: "If you are Balagtas, stand
up." Tecson, the supposed Balagtas, and Irene woke up and as
the former was about to sit up in bed, Oanis fired at him.
Wounded, Tecson leaned towards the door, and Oanis receded
and shouted: "That is Balagtas." Galanta then fired at Tecson.
On the other hand, Oanis testified that, after he had opened
the curtain covering the door and after having said, "if you are
Balagtas stand up," Galanta at once fired at Tecson, the
supposed Balagtas, while the latter was still lying on bed, and
continued firing until he had exhausted his bullets; that it was
only thereafter that he, Oanis, entered the door and upon
seeing the supposed Balagtas, who was then apparently
watching and picking up something from the floor, he fired at
him. The trial court refused to believe the appellants. Their
testimonies are certainly incredible not only because they are
vitiated by a natural urge to exculpate themselves of the crime,
but also because they are materially contradictory. Oanis
averred that he fired at Tecson when the latter was apparently
watching somebody in an attitude of picking up something from
the floor; on the other hand, Galanta testified that Oanis shot
Tecson while the latter was about to sit up in bed immediately
after he was awakened by a noise. Galanta testified that he
fired at Tecson, the supposed Balagtas, when the latter was
rushing at him. But Oanis assured that when Galanta shot
Tecson, the latter was still lying on bed. It is apparent from
these contradictions that when each of the appellants tries to
exculpate himself of the crime charged, he is at once belied by
the other; but their mutual incriminating averments dovetail
with and corroborate substantially, the testimony of Irene
Requinea. It should be recalled that, according to Requinea,
Tecson was still sleeping in bed when he was shot to death by
appellants. And this, to a certain extent, is confirmed by both
appellants themselves in their mutual recriminations.
According, to Galanta, Oanis shot. Tecson when the latter was
still in bed about to sit up just after he was awakened by a
noise. And Oanis
261

VOL. 74, JULY 27, 1943 261

People vs. Oanis and Galanta

assured that when Galanja shot Tecson, the latter was still
lying in bed. Thus corroborated, and considering that the trial
court had the opportunity to observe her demeanor on the
stand, we believe and so hold that no error was committed in
accepting her testimony and in rejecting the exculpatory
pretensions of the two appellants. Furthermore, a careful
examination of Irene's testimony will show not only that her
version of the tragedy is not concocted but that it contains all
indicia of veracity. In her cross-examination, even misleading
questions had been put which were unsuccessful, the witness
having stuck to the truth in every detail of the occurrence.
Under these circumstances, we do not feel ourselves justified in
disturbing the findings of fact made by the trial court.
The true fact, therefore, of the case is that, while Tecson was
sleeping in his room with his back towards the door, Oanis and
Galanta, on sight, fired at him simultaneously or successively,
believing him to be Anselmo Balagtas but without having made
previously any reasonable inquiry as to his identity. And the
question is whether or not they may, upon-such fact, be held
responsible for the death thus caused to Tecson. It is contended
that, as appellants acted in innocent mistake of fact in the
honest performance of their official duties, both of them
believing that Tecson was Balagtas, they incur no criminal
liability. Sustaining this theory in part, the lower court held
and so declared them guilty of the crime of homicide through
reckless imprudence. We are of the opinion, however, that,
under the circumstances of the case, the crime committed by
appellants is murder though specially mitigated by
circumstances to be mentioned below.
In support of the theory of non-liability by reason of honest
mistake of fact, appellants rely on the case of U. S. v. Ah
Chong, 15 Phil., 488. The maxim is ignorantia facti excusat,
but this applies only when the mistake is committed without
fault or carelessness.   In the Ah
Chong case, defendant therein after having gone to bed was
awakened by someone trying to open the door. He called out
twice, "who is there," but received no answer. Fearing that the
intruder was a robber, he leaped from his bed and called out
again, "if you enter the room I will kill you." But at that precise
moment, he was struck by a chair which had been placed
against the door and believing that he was then being attacked,
he seized a kitchen knife and struck and fatally wounded the
intruder who turned out to be his room-mate. A common
illustration of innocent mistake of fact is the case of a man who
was masked as a footpad at night and in a lonely road held up
a friend in a spirit of mischief, and with leveled pistol
demanded his money or life. He was killed by his friend under
the mistaken belief that the attack was real, that the pistol
leveled at his head was loaded and that his life and property
were in imminent danger at the hands of the aggressor. In
these instances, there is an innocent mistake of fact committed
without any fault or carelessness because the accused, having
no time or opportunity to make a further inquiry, and being
pressed by circumstances to act immediately, had no alter-
native but to take the facts as they then appeared to him, and
such facts justified his act of killing. In the instant case,
appellants, unlike the accused in the instances cited, found no
circumstances whatsoever which would press them to
immediate action. The person in the room being then asleep,
appellants had ample time and opportunity to ascertain his
identity without hazard to themselves, and could even effect a
bloodless arrest if any reasonable effort to that end had been
made, as the victim was unarmed. according to Irene Requinea.
This, indeed, is the only legitimate course of action for
appellants to follow even if the victim was really Balagtas, as
they were instructed not to kill Balagtas at sight but to arrest
him, and to get him dead or alive only if resistance or
aggression is offered by him.
262

262 PHILIPPINE REPORTS ANNOTATED

People vs. Oanis and Galanta

Although an officer in making a lawful arrest is justified in

using such force as is reasonably necessary to secure and
detain the offender, overcome his resistance, revent his escape,
recapture him if he escapes, and protect himself from bodily
harm (People vs. Delima, 46 Phil., 738), yet he is never justified
in using unnecessary force or in treating him with wanton
violence, or in resorting to dangerous means when the arrest
could be effected otherwise (6 C. J. S., par. 13, p.612). The
doctrine is restated in the new Rules of Court thus: "No
unnecessary or unreasonable force shall be used in making an
arrest, and the person arrested shall not be subject to any
greater restraint than is necessary for his detention." (Rule
109, sec. 2, par. 2). And a peace officer cannot claim exemption
from criminal liability if he uses unnecessary force or violence
in making an arrest. (5 C. J., p. 753; U. S. vs. Mendoza, 2 Phil.,
109). It may be true that Anselmo Balagtas was a notorious
criminal, a life-termer, a fugitive from justice and a menace to
the peace of the community, but these facts alone constitute no
justification for killing him when, in effecting his arrest, he
offers no resistance, or in fact no resistance can be offered, as
when he is asleep. This, in effect, is the principle laid down,
although upon different facts, in U. S. vs. Donoso (3 Phil., 234,
242).
It is, however, suggested that a notorious criminal "must be
taken by storm" without regard to his right to life which he has
by such notoriety already forfeited. We may approve of this
standard of official conduct where the criminal offers resistance
or does something which places his captors in danger of
imminent attack. Otherwise we cannot see how, as in the
present case, the mere fact of notoriety can make the life of a
criminal a mere' trifle in the hands of the officers of the law.
Notoriety rightly supplies a basis for redoubled official
alertness and vigilance; it never can justify precipitate action
at the cost of human life. Where, as here, the precipitate action
of the appellants has cost an innocent life and there exist no
circumstances whatsoever to warrant action of such character
in the mind of a reasonably prudent man, condemnation—not
condonation—should be the rule; otherwise we would offer a
premium to crime in the shelter of official actuation.
 The crime committed by appelfants is not merely criminal
negligence, the killing being intentional and not accidental. In
criminal negligence, the injury caused to another should be
unintentional, it being simply the incident of another act
performed without malice. (People vs. Sara, 55 Phil., 939). In
the words of Viada, "para que se califique un hecho de
imprudencia es preciso que no haya mediado en él malicia ni
intención alguna de dañar; existiendo esa intención, deberá
calificarse el hecho del delito que ha pro-ducido, por más que no
haya sido la intención del agente el causar un mal de tanta
gravedad como el que se produjo." (Tomo 7, Viada Código Penal
Comentado, 5.a ed. pág. 7). And, as once held by this Court, a
deliberate intent to do an unlawful act is essentially,
inconsistent with the idea of reckless imprudence (People vs.
Nanquil, 43 Phil., 232; People vs. Bindor, 56 Phil., 16), and
where such unlawful act is wilfully done, a mistake in the
identity of the intended victim cannot be considered as reckless
imprudence (People vs. Gona, 54 Phil., 605) to support a plea of
mitigated liability.
As the deceased was killed while asleep, the crime
committed is murder with the qualifying circumstance of
alevosia. There is, however, a mitigating circumstance of
weight consisting in the incomplete justifying circumstance
defined in article 11, No. 5, of the Revised Penal Code.
According lo such legal provision, a person incurs no criminal
liability when he acts in the fulfilment of a duty or in the
lawful exercise of a right or office. There are two requisites in
order that the circumstance may be taken as a justifying one:
(a) that the offender acted in the performance of a duty or in
the lawful exercise of a right; and (b) that the injury
263

VOL. 74, JULY 27, 1943 263

People vs.  Oanis and Galanta

or offense committed be the necessary consequence of the due

performance of such duty or the lawful exercise of such right or
office. In the instant case, only the first requisite is present—
appellants have acted in the performance of a duty. The second
requisite is wanting for the crime by them committed is not the
necessary consequence of a due performance of their duty.
Their duty was to arrest Balagtas, or to get him dead or alive if
resistance is offered by him and they are overpowered. But
through impatience or over-anxiety or in their desire to take no
chances, they have exceeded in the  fulfilment of such duty by
killing the person whom they believed to be Balagtas without
any resistance from him and without making any previous
inquiry as to his identity. According to article 69 of the Revised
Penal Code, the penalty lower by one or two degrees than that
prescribed by law shall, in such case, be imposed.
For all the foregoing, the judgment is modified and
appellants are hereby declared guilty of murder with the
mitigating circumstance above mentioned, and accordingly
sentenced to an indeterminate penalty of from five (5) years of
prisión correccional to fifteen (15) years of reclusión temporal,
with the accessories of the law, and to pay the heirs of the
deceased Serapio Tecson jointly and severally an indemnity of
P2,000, with costs.

Yulo, C. J., Bocobo, Oeneroso and Lopez Vito, A., concur.

PARAS, J., dissenting:

Anselmo Balagtas, a life termer and notorious criminal,
managed to escape and flee from Manila to the provinces. Re-
ceiving information to the effect that he was staying with one
Irene in Cabanatuan, Nueva Ecija, the office of the Constab-
ulary in Manila ordered the Provincial Inspector in
Cabanatuan by telegram dispatched on December 24,1938, to
get Balagtas "dead or alive". Among those assigned to the task
of carrying out the said order, were Antonio Z. Oanis, chief of
 police  of  Cabanatuan,   and   Alberto
Galanta, a Constabulary corporal, to whom the telegram
received by the Provincial Inspector and a newspaper picture of
Balagtas were shown. Oanis, Galanta and a Constabulary
private, after being told by the Provincial Inspector to gather
information about Balagtas, "to arrest him and, if overpowered,
to follow the instructions contained in the telegram," proceeded
to the place where the house of Irene was located. Upon
arriving thereat, Oanis approached Brigida Mallari, who was
then gathering banana stalks in the yard, and inquired for the
room of Irene. After Mallari had pointed out the room, she was
asked by Oanis to tell where Irene's paramour, Balagtas, was,
whereupon Mallari answered that he was sleeping with Irene.
Upon reaching the room indicated, Oanis and Galanta, after
the former had shouted "Stand up, if you are Balagtas," started
shooting the man who was found by them lying down beside a
woman. The man was thereby killed, but Balagtas was still
alive, for it turned out that the person shot by Oanis and
Galanta was one Serapio Tecson.
Consequently, Oanis and Galanta were charged with having
committed murder. The Court of First Instance of Nueva Ecija,
however, convicted them only of homicide through reckless
imprudence and sentenced them each-to suffer the inde-
terminate penalty of from 1 year and 6 months to 2 years and 2
months of prisión correccional, to jointly and severally in-
demnify the heirs of Serapio Tecson in the amount of P1,000,
and to pay the costs. Oanis and Galanta have appealed.
In accomplishing the acts with which the appellants were
charged, they undoubtedly followed the order issued by the
Constabulary authorities in Manila requiring the Provincial
Inspector in Cabanatuan to get Balagtas dead or alive, in the
honest belief that Serapio Tecson was Anselmo Balagtas. As
the latter became a fugitive criminal, with revolvers in his
possession and a record that made him extremely dangerous
and a public terror, the Constabulary authorities were justified
in ordering his arrest, whether
264
264 PHILIPPINE REPORTS ANNOTATED
People vs. Oanis and Galanta

dead or alive. In view of said order and the danger faced by the
appellants in carrying it out, they cannot be said to have acted
feloniously in shooting the person honestry believed by them to
be the wanted man. Conscious of the fact that Balagtas would
rather kill than be captured, the appellants did not want to
take chances and should not be penalized for such prudence.
On the contrary, they should be commended for their bravery
and courage bordering on recklessness because, without
knowing or ascertaining whether the wanted man was in fact
asleep in his room, they proceeded thereto without hesitation
and thereby exposed their lives to danger.
The Solicitor-General, however, contends that the appellants
were authorized to use their revolvers only after being
overpowered by Balagtas. In the first place, the alleged
instruction by the Provincial Inspector to that effect, was in
violation of the express order given by the Constabulary
authorities in Manila and which was shown to the appellants.
In the second place, it would indeed be suicidal for the
appellants or, for that matter, any agent of the authority to
have waited until they have been overpowered before trying to
put out such a character as Balagtas. In the third place, it is
immaterial whether or not the instruction given by the
Provincial Inspector was legitimate and proper, because the
facts exist that the appellants acted in conformity with the
express order of superior Constabulary authorities, the legality
or propriety of which is not herein questioned.
The theory of the prosecution has acquired some
plausibility, though quite psychological or sentimental, in view
only of the fact that it was not Balagtas who was actually
killed, but an "innocent man * * * while he was deeply asleep."
Anybody's heart will be profoundly grieved by the tragedy, but
in time will be consoled by the realization that the life of
Serapio Tecson, was not vainly sacrificed, for the incident will
always serve as a loud warning to any one desiring to follow in
the footsteps of Anselmo Balagtas that in due time the duly
constituted authorities will, upon proper order, enforce the
summary forfeiture of his life.
In my opinion, therefore, the appellants are not criminally
liable if the person killed by them was in fact Anselmo Ba-
lagtas for the reason that they did so in the fulfillment of their
duty and in obedience to an order issued by a superior for some
lawful purpose (Revised Penal Code, art. 11, pars. 5 and 6).  
  They also cannot be held criminally liable even if the person
killed by them was not Anselmo Balagtas, but Serapio Tecson,
because they did so under an honest mistake of fact not due to
negligence or bad faith. (U. S. vs. Ah Chong, 15 Phil., 488).
It is true that, under article 4 of the Revised Penal Code,
criminal liability is incurred by any person committing a felony
although the wrongful act done be different from that which he
intended; but said article is clearly inapplicable since the
killing of the person who was believed to be Balagtas was, as
already stated, not wrongful or felonious.
The case of U. S. vs. Mendieta (34 Phil., 242), cited by the
Solicitor-General, is not in point, inasmuch as the defendant
therein, who intended to injure Hilario Lauigan with whom he
had a quarrel, but killed another by mistake, would not be ex-
empted from criminal liability if he actually injured or killed
Hilario Lauigan, there being a malicious design on his part.
The other case invoked by the prosecution is U. S. us. Donoso (3
Phil., 234). This is also not in point, as it appears that the
defendants therein killed one Pedro Almasan after he had
already surrendered and allowed himself to be bound and that
the said defendants did not have lawful instructions from
superior authorities to capture Almasan dead or alive.
The appealed judgment should therefore be reversed and the
appellants, Antonio Z. Oanis and Alberto Galanta, acquitted,
with costs de oficio.
HONTIVEROS, J., dissenting:
   According to the opinion of the major-
265

VOL. 74, JULY 27, 1943 265

People vs.  Oanis and Galanta

ity, it is proper to follow the rule that a notorious criminal

"must be taken by storm without regard to his life which he
has, by his conduct, already forfeited," whenever said criminal
offers resistance or does something which places his captors in
danger of imminent attack. Precisely, the situation which
confronted the accused-appellants Antonio Z. Oanis and
Alberto Galanta in the afternoon of December 24, 1938, was
very similar to this. It must be remembered that both officers
received instructions to get Balagtas "dead or alive", and
according to the attitude of not only the said appellants but
also of Capt. Monsod, constabulary provincial inspector of
Nueva Ecija, it may be assumed that said instructions gave
more emphasis to the first part; namely, to take him dead. It
appears in the record that after the shooting, and having been
informed of the case, Capt. Monsod stated that Oanis and
Galanta might be decorated for what they had done. That was
when all parties concerned honestly believed that the dead
person was Balagtas himself, a dangerous criminal who had
escaped from his guards and was supposedly armed with a .45
caliber pistol. Brigida Mallari, the person whom the appellants
met upon arriving at the house of Irene Requinea, supposed
mistress of Balagtas, informed them that said Balagtas was
Upstairs. Appellants found there asleep a man closely
resembling the wanted criminal. Oanis said: "If you are
Balagtas stand up." But the supposed criminal showed his
intention to attack the appellants, a conduct easily explained
by the fact that he should have felt offended by the intrusion of
persons in the room where he was peacefully lying down with
his mistress. In such predicament, it was nothing but human
on the part of the appellants to employ force and to make use of
their weapons in order to repel the imminent attack by a
person who, according to their belief, was Balagtas. It was
unfortunate, however, that an innocent man was actually
killed. But taking into consideration the facts of the case, it is,
according to my humble opinion, proper to apply herein the
doctrine laid down in the case of U. S. vs. Ah Chong (15 Phil.,
488). In the instant case we have, as in the case supra, an
innocent mistake of fact committed without any fault or
carelessness on the part of the accused, who, having no time to
make a further inquiry, had no alternative but to take the facts
as they appeared to them and act immediately.
The decision of the majority, in recognition of the special
circumstances of this case which favored the accused-appel-
lants, arrives at the conclusion that an incomplete justifying
circumstance may be invoked, and therefore, according to Ar-
ticle 69 of the Revised Penal Code, the im-posable penalty
should be one which is lower by one or two degrees than that
prescribed by law. This incomplete justifying circumstance is
that defined in Article 11, No. 5, of the Revised Penal Code, in
favor of "a person who acts in the fulfillment of a duty or in the
lawful exercise of a right or office." I believe that the
application of this circumstance is not proper. Article 69 of the
Revised Penal Code provides as follows:

"Art. 69. Penalty to be imposed when the crime committed is not

wholly excusable.—A penalty lower by one or two degrees than that
prescribed by law shall be imposed if the deed is not wholly excusable
by reason of the lack of some of the conditions required to justify the
same or to exempt from criminal liability in the several cases
mentioned in articles 11 and 12, provided that the majority of such
conditions be present. The courts shall impose the penalty in the
period which may be deemed proper, in view of the number and nature
of the conditions of exemption present or lacking."

This provision has been copied almost verbatim from Article

84 of the old Penal Code of the Philippines, and which was also
taken from Article 87 of the Spanish Penal Code of 1870.
Judge Guillermo Guevara, one of the members of the
Committee created by Administrative Order No. 94 of the De-
partment of Justice for the drafting of the Revised Penal Code,
in commenting on Article 69, said that the justifying cir-
266

266 PHILIPPINE REPORTS ANNOTATED

People vs. Oanis and Galanta

cumstances and circumstances exempting from liability which

are the subject matter of this article are the following: self-
defense, defense of relatives, defense of strangers, state of
necessity and injury caused by mere accident. Accordingly,
justifying circumstance No. 5 pf Article 11 dealing with the
fulfillment of a duty or the lawful exercise of a right, calling or
office, cannot be placed within its scope.
The eminent treatiser of criminal law Mr. Groizard, in his
commentary of Article 87 of the Spanish Penal Code of 1870
which is the source of Article 69 of our Code, says:

"Ni tratándose de la imbecilidad, ni de la locura, m de la menor

edad, ni del que obra violentado por una fuerza irresistible o impul-
sado por miedo insuperable de un mal igual o mayor, o en
cumplimiento de un deber, o en el ejercicio legitimo de un derecho,
oficio o cargo, o en virtud de obediencia debida, ni del que incurre en
alguna omisión hallándose impedido por causa legítima o insuperable,
puede tener aplicación al artículo que comentamos. Y la razón es
obvia. En ninguna de estas exenciones hay pluralidad de requisitos.
La irresponsabilidad depende de una sola condictión. Hay o no
perturbation de la razón; el autor del hecho es o no menor de nueve
años; existe o no violencia material o moral irresistible, etc., etc., tal es
lo que respectivamente hay que examinar y resolver para declarar la
culpabilidad o inculpabilidad. Es, por lo tanto, imposible que acontezca
lo que el texto que va al frente de estas lineas requiere, para que se
imponga al autor del hecho la penalidad excepcional que establece;
esto es que falten algunos requisitos de los que la ley exige para eximir
de responsabilidad, y que concurran el mayor número de ellos, toda
vez que, en los casos referidos, la ley no exige multiples condi-ciones."

It must be taken into account the fact according to Article 69

a penalty lower by one or two degrees than that prescribed by
law shall be imposed if the deed is not wholly excusable by
reason of the lack of some of the conditions required by the law
to justify the same or exempt from criminal liability. The word
"conditions" should not be confused with the word "requisites"'.
In dealing with justifying circumstance No. 5, Judge Guevara
states: "There are two requisites in order that this
circumstance may be taken into account: (a) That the offender
acted in the performance of his duty or in the lawful exercise of
a right; and (b) That the injury or offense committed be the
necessary consequence of the performance of a duty or the
lawful exercise of a right or office." It is evident that these two
requisites concur in the present case if we consider the
intimate connection between the order given to the appellant
by Capt. Monsod, the showing to them of the telegram from
Manila to get Balagtas who was with a bailarina named Irene,
the conduct of said appellants in questioning Brigida Mallari
and giving a warning to the supposed criminal when both
found him with Irene, and the statement made by" Capt.
Monsod after the shooting.
If appellant Oanis is entitled to a reversal of the decision of
the court below, there are more reasons in favor of the acquittal
of appellant Galanta. According to the evidence no bullet from
the gun fired by this accused ever hit Serapio Tecson. Galanta
was armed in the afternoon of December 24, 1938, with a .45
caliber revolver (Exhibit L). He so testified and was
corroborated by the unchallenged testimony) of his superior
officer Sgt. Valeriano Serafica. According to this witness, since
 Galanta was made a corporal of the Constabulary he was given,
as part of his equipment, revolver Exhibit L with a serial No.
37121. This gun had been constantly used by Galanta, and,
according to Sgt. Pedro Marasigan, who accompanied said
accused when he took it from his trunk m the barracks on the
night of December 24, 1938, upon order of Captain Monsod, it
was the same revolver which was given to the witness with five
.45 caliber bullets and one entity shell. Fourteen unused
bullets were also taken from Galanta by Sergeant Serafica,
thus completing his regular equipment of twenty bullets which
he had on the morning of December 24, 1938, when Sergeant
Serafica made the usual inspection of the firearms in the
possession of the

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