G.R. No.

L-5272 March 19, 1910

THE UNITED STATES, Plaintiff-Appellee,
vs.
AH CHONG, Defendant-Appellant.
The evidence as to many of the essential and vital facts in
this case is limited to the testimony of the accused himself,
because from the very nature of these facts and from the
circumstances surrounding the incident upon which these
proceedings rest, no other evidence as to these facts was available
either to the prosecution or to the defense. We think, however,
that, giving the accused the benefit of the doubt as to the weight of
the evidence touching those details of the incident as to which
there can be said to be any doubt, the following statement of the
material facts disclose by the record may be taken to be
substantially correct:
The defendant, Ah Chong, was employed as a cook at
"Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at
the same place Pascual Gualberto, deceased, was employed as a
house boy or muchacho. "Officers' quarters No. 27" as a detached
house situates some 40 meters from the nearest building, and in
August, 19087, was occupied solely as an officers' mess or club. No
one slept in the house except the two servants, who jointly
occupied a small room toward the rear of the building, the door of
which opened upon a narrow porch running along the side of the
building, by which communication was had with the other part of
the house. This porch was covered by a heavy growth of vines for
its entire length and height. The door of the room was not furnished
with a permanent bolt or lock, and occupants, as a measure of
security, had attached a small hook or catch on the inside of the
door, and were in the habit of reinforcing this somewhat insecure
means of fastening the door by placing against it a chair. In the
room there was but one small window, which, like the door, opened
on the porch. Aside from the door and window, there were no other
openings of any kind in the room.
On the night of August 14, 1908, at about 10 o'clock, the
defendant, who had received for the night, was suddenly awakened
by some trying to force open the door of the room. He sat up in bed
and called out twice, "Who is there?" He heard no answer and was
convinced by the noise at the door that it was being pushed open
by someone bent upon forcing his way into the room. Due to the
heavy growth of vines along the front of the porch, the room was
very dark, and the defendant, fearing that the intruder was a

robber or a thief, leaped to his feet and called out. "If you enter the
room, I will kill you." At that moment he was struck just above the
knee by the edge of the chair which had been placed against the
door. In the darkness and confusion the defendant thought that the
blow had been inflicted by the person who had forced the door
open, whom he supposed to be a burglar, though in the light of
after events, it is probable that the chair was merely thrown back
into the room by the sudden opening of the door against which it
rested. Seizing a common kitchen knife which he kept under his
pillow, the defendant struck out wildly at the intruder who, it
afterwards turned out, was his roommate, Pascual. Pascual ran out
upon the porch and fell down on the steps in a desperately
wounded condition, followed by the defendant, who immediately
recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next house,
No. 28, and ran back to his room to secure bandages to bind up
Pascual's wounds.
There had been several robberies in Fort McKinley not long
prior to the date of the incident just described, one of which took
place in a house in which the defendant was employed as cook;
and as defendant alleges, it was because of these repeated
robberies he kept a knife under his pillow for his personal
protection.
The deceased and the accused, who roomed together and
who appear to have on friendly and amicable terms prior to the
fatal incident, had an understanding that when either returned at
night, he should knock at the door and acquiant his companion with
his identity. Pascual had left the house early in the evening and
gone for a walk with his friends, Celestino Quiambao and Mariano
Ibaez, servants employed at officers' quarters No. 28, the nearest
house to the mess hall. The three returned from their walk at about
10 o'clock, and Celestino and Mariano stopped at their room at No.
28, Pascual going on to his room at No. 27. A few moments after
the party separated, Celestino and Mariano heard cries for
assistance and upon returning to No. 27 found Pascual sitting on
the back steps fatally wounded in the stomach, whereupon one of
them ran back to No. 28 and called Liuetenants Jacobs and Healy,
who immediately went to the aid of the wounded man.
The defendant then and there admitted that he had stabbed
his roommate, but said that he did it under the impression that
Pascual was "a ladron" because he forced open the door of their
sleeping room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the

part of Pascuals suggests itself, unless it be that the boy in a spirit
of mischief was playing a trick on his Chinese roommate, and
sought to frightened him by forcing his way into the room, refusing
to give his name or say who he was, in order to make Ah Chong
believe that he was being attacked by a robber.
Defendant was placed under arrest forthwith, and Pascual
was conveyed to the military hospital, where he died from the
effects of the wound on the following day.
The defendant was charged with the crime of assassination,
tried, and found guilty by the trial court of simple homicide, with
extenuating circumstances, and sentenced to six years and one
day presidio mayor, the minimum penalty prescribed by law.
At the trial in the court below the defendant admitted that
he killed his roommate, Pascual Gualberto, but insisted that he
struck the fatal blow without any intent to do a wrongful act, in the
exercise of his lawful right of self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are therefore
exempt from criminal liability:
4 He who acts in defense of his person or rights,
provided there are the following attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means employed to
prevent or repel it.
(3) Lack of sufficient provocation on the part of the
person defending himself.
Under these provisions we think that there can be no doubt
that defendant would be entitle to complete exception from
criminal liability for the death of the victim of his fatal blow, if the
intruder who forced open the door of his room had been in fact a
dangerous thief or "ladron," as the defendant believed him to be.
No one, under such circumstances, would doubt the right of the
defendant to resist and repel such an intrusion, and the thief
having forced open the door notwithstanding defendant's thricerepeated warning to desist, and his threat that he would kill the
intruder if he persisted in his attempt, it will not be questioned that
in the darkness of the night, in a small room, with no means of
escape, with the thief advancing upon him despite his warnings

defendant would have been wholly justified in using any available

weapon to defend himself from such an assault, and in striking
promptly, without waiting for the thief to discover his whereabouts
and deliver the first blow.
But the evidence clearly discloses that the intruder was not
a thief or a "ladron." That neither the defendant nor his property
nor any of the property under his charge was in real danger at the
time when he struck the fatal blow. That there was no such
"unlawful aggression" on the part of a thief or "ladron" as
defendant believed he was repelling and resisting, and that there
was no real "necessity" for the use of the knife to defend his person
or his property or the property under his charge.
The question then squarely presents it self, whether in this
jurisdiction one can be held criminally responsible who, by reason
of a mistake as to the facts, does an act for which he would be
exempt from criminal liability if the facts were as he supposed them
to be, but which would constitute the crime of homicide or
assassination if the actor had known the true state of the facts at
the time when he committed the act. To this question we think
there can be but one answer, and we hold that under such
circumstances there is no criminal liability, provided always that
the alleged ignorance or mistake or fact was not due to negligence
or bad faith.
In broader terms, ignorance or mistake of fact, if such
ignorance or mistake of fact is sufficient to negative a particular
intent which under the law is a necessary ingredient of the offense
charged (e.g., in larcerny, animus furendi; in murder, malice; in
crimes intent) "cancels the presumption of intent," and works an
acquittal; except in those cases where the circumstances demand a
conviction under the penal provisions touching criminal negligence;
and in cases where, under the provisions of article 1 of the Penal
Code one voluntarily committing a crime or misdeamor incurs
criminal liability for any wrongful act committed by him, even
though it be different from that which he intended to commit.
(Wharton's Criminal Law, sec. 87 and cases cited; McClain's Crim.
Law, sec. 133 and cases cited; Pettit vs. S., 28 Tex. Ap., 240;
Commonwealth vs. Power, 7 Met., 596; Yates vs. People, 32 N.Y.,
509; Isham vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7
Met., 500.)
The general proposition thus stated hardly admits of
discussion, and the only question worthy of consideration is
whether malice or criminal intent is an essential element or

ingredient of the crimes of homicide and assassination as defined

and penalized in the Penal Code. It has been said that since the
definitions there given of these as well as most other crimes and
offense therein defined, do not specifically and expressly declare
that the acts constituting the crime or offense must be committed
with malice or with criminal intent in order that the actor may be
held criminally liable, the commission of the acts set out in the
various definitions subjects the actor to the penalties described
therein, unless it appears that he is exempted from liability under
one or other of the express provisions of article 8 of the code, which
treats of exemption. But while it is true that contrary to the general
rule of legislative enactment in the United States, the definitions of
crimes and offenses as set out in the Penal Code rarely contain
provisions expressly declaring that malice or criminal intent is an
essential ingredient of the crime, nevertheless, the general
provisions of article 1 of the code clearly indicate that malice, or
criminal intent in some form, is an essential requisite of all crimes
and offense therein defined, in the absence of express provisions
modifying the general rule, such as are those touching liability
resulting from acts negligently or imprudently committed, and acts
done by one voluntarily committing a crime or misdemeanor,
where the act committed is different from that which he intended to
commit. And it is to be observed that even these exceptions are
more apparent than real, for "There is little distinction, except in
degree, between a will to do a wrongful thing and indifference
whether it is done or not. Therefore carelessness is criminal, and
within limits supplies the place of the affirmative criminal intent"
(Bishop's New Criminal Law, vol. 1, s. 313); and, again, "There is so
little difference between a disposition to do a great harm and a
disposition to do harm that one of them may very well be looked
upon as the measure of the other. Since, therefore, the guilt of a
crime consists in the disposition to do harm, which the criminal
shows by committing it, and since this disposition is greater or less
in proportion to the harm which is done by the crime, the
consequence is that the guilt of the crime follows the same
proportion; it is greater or less according as the crime in its own
nature does greater or less harm" (Ruth. Ints. C. 18, p. 11); or, as it
has been otherwise stated, the thing done, having proceeded from
a corrupt mid, is to be viewed the same whether the corruption was
of one particular form or another.
Article 1 of the Penal Code is as follows:
Crimes or misdemeanors are voluntary acts and
ommissions punished by law.

Acts and omissions punished by law are always

presumed to be voluntarily unless the contrary shall appear.
A person voluntarily committing a crime or
misdemeanor shall incur criminal liability, even though the
wrongful act committed be different from that which he had
intended to commit.
The celebrated Spanish jurist Pacheco, discussing the
meaning of the word "voluntary" as used in this article, say that a
voluntary act is a free, intelligent, and intentional act, and roundly
asserts that without intention (intention to do wrong or criminal
intention) there can be no crime; and that the word "voluntary"
implies and includes the words "con malicia," which were expressly
set out in the definition of the word "crime" in the code of 1822, but
omitted from the code of 1870, because, as Pacheco insists, their
use in the former code was redundant, being implied and included
in the word "voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)
Viada, while insisting that the absence of intention to
commit the crime can only be said to exempt from criminal
responsibility when the act which was actually intended to be done
was in itself a lawful one, and in the absence of negligence or
imprudence, nevertheless admits and recognizes in his discussion
of the provisions of this article of the code that in general without
intention there can be no crime. (Viada, vol. 1, p. 16.) And, as we
have shown above, the exceptions insisted upon by Viada are more
apparent than real.
Silvela, in discussing the doctrine herein laid down, says:
In fact, it is sufficient to remember the first article,
which declared that where there is no intention there is no
crime . . . in order to affirm, without fear of mistake, that
under our code there can be no crime if there is no act, an
act which must fall within the sphere of ethics if there is no
moral injury. (Vol. 2, the Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme
court of Spain, as, for example in its sentence of May 31, 1882, in
which it made use of the following language:
It is necessary that this act, in order to constitute a
crime, involve all the malice which is supposed from the
operation of the will and an intent to cause the injury which
may be the object of the crime.

And again in its sentence of March 16, 1892, wherein it held

that "considering that, whatever may be the civil effects of the
inscription of his three sons, made by the appellant in the civil
registry and in the parochial church, there can be no crime because
of the lack of the necessary element or criminal intention, which
characterizes every action or ommission punished by law; nor is he
guilty of criminal negligence."
And to the same effect in its sentence of December 30,
1896, it made use of the following language:
. . . Considering that the moral element of the crime,
that is, intent or malice or their absence in the commission
of an act defined and punished by law as criminal, is not a
necessary question of fact submitted to the exclusive
judgment and decision of the trial court.
That the author of the Penal Code deemed criminal intent or
malice to be an essential element of the various crimes and
misdemeanors therein defined becomes clear also from an
examination of the provisions of article 568, which are as follows:
He who shall execute through reckless negligence an
act that, if done with malice, would constitute a grave crime,
shall be punished with the penalty of arresto mayor in its
maximum degree, to prision correccional in its minimum
degrees if it shall constitute a less grave crime.
He who in violation of the regulations shall commit a
crime through simple imprudence or negligence shall incur
the penalty of arresto mayor in its medium and maximum
degrees.
In the application of these penalties the courts shall proceed
according to their discretion, without being subject to the
rules prescribed in article 81.
The provisions of this article shall not be applicable if
the penalty prescribed for the crime is equal to or less than
those contained in the first paragraph thereof, in which case
the courts shall apply the next one thereto in the degree
which they may consider proper.
The word "malice" in this article is manifestly substantially
equivalent to the words "criminal intent," and the direct inference
from its provisions is that the commission of the acts contemplated

therein, in the absence of malice (criminal intent), negligence, and

imprudence, does not impose any criminal liability on the actor.
The word "voluntary" as used in article 1 of the Penal Code
would seem to approximate in meaning the word "willful" as used in
English and American statute to designate a form of criminal intent.
It has been said that while the word "willful" sometimes means little
more than intentionally or designedly, yet it is more frequently
understood to extent a little further and approximate the idea of
the milder kind of legal malice; that is, it signifies an evil intent
without justifiable excuse. In one case it was said to mean, as
employed in a statute in contemplation, "wantonly" or
"causelessly;" in another, "without reasonable grounds to believe
the thing lawful." And Shaw, C. J., once said that ordinarily in a
statute it means "not merely `voluntarily' but with a bad purpose;
in other words, corruptly." In English and the American statutes
defining crimes "malice," "malicious," "maliciously," and "malice
aforethought" are words indicating intent, more purely technical
than "willful" or willfully," but "the difference between them is not
great;" the word "malice" not often being understood to require
general malevolence toward a particular individual, and signifying
rather the intent from our legal justification. (Bishop's New Criminal
Law, vol. 1, secs. 428 and 429, and cases cited.)
But even in the absence of express words in a statute,
setting out a condition in the definition of a crime that it be
committed "voluntarily," willfully," "maliciously" "with malice
aforethought," or in one of the various modes generally construed
to imply a criminal intent, we think that reasoning from general
principles it will always be found that with the rare exceptions
hereinafter mentioned, to constitute a crime evil intent must
combine with an act. Mr. Bishop, who supports his position with
numerous citations from the decided cases, thus forcely present
this doctrine:
In no one thing does criminal jurisprudence differ
more from civil than in the rule as to the intent. In
controversies between private parties the quo animo with
which a thing was done is sometimes important, not always;
but crime proceeds only from a criminal mind. So that
There can be no crime, large or small, without an evil
mind. In other words, punishment is the sentence of
wickedness, without which it can not be. And neither in
philosophical speculation nor in religious or mortal
sentiment would any people in any age allow that a man

should be deemed guilty unless his mind was so. It is

therefore a principle of our legal system, as probably it is of
every other, that the essence of an offense is the wrongful
intent, without which it can not exists. We find this doctrine
confirmed by
Legal maxims. The ancient wisdom of the law,
equally with the modern, is distinct on this subject. It
consequently has supplied to us such maxims as Actus non
facit reum nisi mens sit rea, "the act itself does not make
man guilty unless his intention were so;" Actus me incito
factus non est meus actus, "an act done by me against my
will is not my act;" and others of the like sort. In this, as just
said, criminal jurisprudence differs from civil. So also
Moral science and moral sentiment teach the same
thing. "By reference to the intention, we inculpate or
exculpate others or ourselves without any respect to the
happiness or misery actually produced. Let the result of an
action be what it may, we hold a man guilty simply on the
ground of intention; or, on the dame ground, we hold him
innocent." The calm judgment of mankind keeps this
doctrine among its jewels. In times of excitement, when
vengeance takes the place of justice, every guard around
the innocent is cast down. But with the return of reason
comes the public voice that where the mind is pure, he who
differs in act from his neighbors does not offend. And
In the spontaneous judgment which springs from the
nature given by God to man, no one deems another to
deserve punishment for what he did from an upright mind,
destitute of every form of evil. And whenever a person is
made to suffer a punishment which the community deems
not his due, so far from its placing an evil mark upon him, it
elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification
of what has the appearance of wrong, with the utmost
confidence that the plea, if its truth is credited, will be
accepted as good. Now these facts are only the voice of
nature uttering one of her immutable truths. It is, then, the
doctrine of the law, superior to all other doctrines, because
first in nature from which the law itself proceeds, that no
man is to be punished as a criminal unless his intent is
wrong. (Bishop's New Criminal Law, vol. 1, secs. 286 to 290.)

Compelled by necessity, "the great master of all things," an

apparent departure from this doctrine of abstract justice result from
the adoption of the arbitrary rule that Ignorantia juris non excusat
("Ignorance of the law excuses no man"), without which justice
could not be administered in our tribunals; and compelled also by
the same doctrine of necessity, the courts have recognized the
power of the legislature to forbid, in a limited class of cases, the
doing of certain acts, and to make their commission criminal
without regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that the
courts have always held that unless the intention of the lawmaker
to make the commission of certain acts criminal without regard to
the intent of the doer is clear and beyond question the statute will
not be so construed (cases cited in Cyc., vol. 12, p. 158, notes 76
and 77); and the rule that ignorance of the law excuses no man has
been said not to be a real departure from the law's fundamental
principle that crime exists only where the mind is at fault, because
"the evil purpose need not be to break the law, and if suffices if it is
simply to do the thing which the law in fact forbids." (Bishop's New
Criminal Law, sec. 300, and cases cited.)
But, however this may be, there is no technical rule, and no
pressing necessity therefore, requiring mistake in fact to be dealt
with otherwise that in strict accord with the principles of abstract
justice. On the contrary, the maxim here is Ignorantia facti excusat
("Ignorance or mistake in point of fact is, in all cases of supposed
offense, a sufficient excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable element in
every crime, any such mistake of fact as shows the act committed
to have proceeded from no sort of evil in the mind necessarily
relieves the actor from criminal liability provided always there is no
fault or negligence on his part; and as laid down by Baron Parke,
"The guilt of the accused must depend on the circumstances as
they appear to him." (Reg. vs. Thurborn, 1 Den. C., 387; P.
vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P.,
32 N. Y., 509; Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen, 8 Cox
C. C., 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex. Ap.,
387.) That is to say, the question as to whether he honestly, in
good faith, and without fault or negligence fell into the mistake is to
be determined by the circumstances as they appeared to him at
the time when the mistake was made, and the effect which the
surrounding circumstances might reasonably be expected to have
on his mind, in forming the intent, criminal or other wise, upon
which he acted.

If, in language not uncommon in the cases, one has

reasonable cause to believe the existence of facts which will
justify a killing or, in terms more nicely in accord with the
principles on which the rule is founded, if without fault or
carelessness he does believe them he is legally guiltless
of the homicide; though he mistook the facts, and so the life
of an innocent person is unfortunately extinguished. In other
words, and with reference to the right of self-defense and
the not quite harmonious authorities, it is the doctrine of
reason and sufficiently sustained in adjudication, that
notwithstanding some decisions apparently adverse,
whenever a man undertakes self-defense, he is justified in
acting on the facts as they appear to him. If, without fault or
carelessness, he is misled concerning them, and defends
himself correctly according to what he thus supposes the
facts to be the law will not punish him though they are in
truth otherwise, and he was really no occasion for the
extreme measures. (Bishop's New Criminal Law, sec. 305,
and large array of cases there cited.)
The common illustration in the American and English
textbooks of the application of this rule is the case where a man,
masked and disguised as a footpad, at night and on a lonely road,
"holds up" his friends in a spirit of mischief, and with leveled pistol
demands his money or his life, but is killed by his friend under the
mistaken belief that the attack is a real one, that the pistol leveled
at his head is loaded, and that his life and property are in imminent
danger at the hands of the aggressor. No one will doubt that if the
facts were such as the slayer believed them to be he would be
innocent of the commission of any crime and wholly exempt from
criminal liability, although if he knew the real state of the facts
when he took the life of his friend he would undoubtedly be guilty
of the crime of homicide or assassination. Under such
circumstances, proof of his innocent mistake of the facts overcomes
the presumption of malice or criminal intent, and (since malice or
criminal intent is a necessary ingredient of the "act punished by
law" in cases of homicide or assassination) overcomes at the same
time the presumption established in article 1 of the code, that the
"act punished by law" was committed "voluntarily."
Parson, C.J., in the Massachusetts court, once said:
If the party killing had reasonable grounds for
believing that the person slain had a felonious design
against him, and under that supposition killed him, although
it should afterwards appear that there was no such design, it

will not be murder, but it will be either manslaughter or

excusable homicide, according to the degree of caution used
and the probable grounds of such belief. (Charge to the
grand jury in Selfridge's case, Whart, Hom., 417, 418,
Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury, enforced the
doctrine as follows:
A, in the peaceable pursuit of his affairs, sees B
rushing rapidly toward him, with an outstretched arms and a
pistol in his hand, and using violent menaces against his life
as he advances. Having approached near enough in the
same attitude, A, who has a club in his hand, strikes B over
the head before or at the instant the pistol is discharged;
and of the wound B dies. It turns out the pistol was loaded
with powder only, and that the real design of B was only to
terrify A. Will any reasonable man say that A is more
criminal that he would have been if there had been a bullet
in the pistol? Those who hold such doctrine must require
that a man so attacked must, before he strikes the assailant,
stop and ascertain how the pistol is loaded a doctrine
which would entirely take away the essential right of selfdefense. And when it is considered that the jury who try the
cause, and not the party killing, are to judge of the
reasonable grounds of his apprehension, no danger can be
supposed to flow from this principle. (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme
court of Spain, cited by Viada, a few of which are here set out in full
because the facts are somewhat analogous to those in the case at
bar.
QUESTION III. When it is shown that the accused was sitting
at his hearth, at night, in company only of his wife, without
other light than reflected from the fire, and that the man
with his back to the door was attending to the fire, there
suddenly entered a person whom he did not see or know,
who struck him one or two blows, producing a contusion on
the shoulder, because of which he turned, seized the person
and took from his the stick with which he had undoubtedly
been struck, and gave the unknown person a blow, knocking
him to the floor, and afterwards striking him another blow
on the head, leaving the unknown lying on the floor, and left
the house. It turned out the unknown person was his fatherin-law, to whom he rendered assistance as soon as he
learned his identity, and who died in about six days in

consequence of cerebral congestion resulting from the blow.

The accused, who confessed the facts, had always sustained
pleasant relations with his father-in-law, whom he visited
during his sickness, demonstrating great grief over the
occurrence. Shall he be considered free from criminal
responsibility, as having acted in self-defense, with all the
circumstances related in paragraph 4, article 8, of the Penal
Code? The criminal branch of the Audiencia of Valladolid
found that he was an illegal aggressor, without sufficient
provocation, and that there did not exists rational necessity
for the employment of the force used, and in accordance
with articles 419 and 87 of the Penal Code condemned him
to twenty months of imprisonment, with accessory penalty
and costs. Upon appeal by the accused, he was acquitted by
the supreme court, under the following sentence:
"Considering, from the facts found by the sentence to have
been proven, that the accused was surprised from behind,
at night, in his house beside his wife who was nursing her
child, was attacked, struck, and beaten, without being able
to distinguish with which they might have executed their
criminal intent, because of the there was no other than fire
light in the room, and considering that in such a situation
and when the acts executed demonstrated that they might
endanger his existence, and possibly that of his wife and
child, more especially because his assailant was unknown,
he should have defended himself, and in doing so with the
same stick with which he was attacked, he did not exceed
the limits of self-defense, nor did he use means which were
not rationally necessary, particularly because the
instrument with which he killed was the one which he took
from his assailant, and was capable of producing death, and
in the darkness of the house and the consteration which
naturally resulted from such strong aggression, it was not
given him to known or distinguish whether there was one or
more assailants, nor the arms which they might bear, not
that which they might accomplish, and considering that the
lower court did not find from the accepted facts that there
existed rational necessity for the means employed, and that
it did not apply paragraph 4 of article 8 of the Penal Code, it
erred, etc." (Sentence of supreme court of Spain, February
28, 1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at night, to his house,
which was situated in a retired part of the city, upon arriving
at a point where there was no light, heard the voice of a
man, at a distance of some 8 paces, saying: "Face down,

hand over you money!" because of which, and almost at the

same money, he fired two shots from his pistol,
distinguishing immediately the voice of one of his friends
(who had before simulated a different voice) saying, "Oh!
they have killed me," and hastening to his assistance,
finding the body lying upon the ground, he cried, "Miguel,
Miguel, speak, for God's sake, or I am ruined," realizing that
he had been the victim of a joke, and not receiving a reply,
and observing that his friend was a corpse, he retired from
the place. Shall he be declared exempt in toto from
responsibility as the author of this homicide, as having acted
in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code? The criminal branch of
the Audiencia of Malaga did not so find, but only found in
favor of the accused two of the requisites of said article, but
not that of the reasonableness of the means employed to
repel the attack, and, therefore, condemned the accused to
eight years and one day of prison mayor, etc. The supreme
court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of
the person calling to him, and that under the circumstances,
the darkness and remoteness, etc., the means employed
were rational and the shooting justifiable. (Sentence
supreme court, March 17, 1885.) (Viada, Vol. I, p. 136.)
QUESTION VI. The owner of a mill, situated in a remote spot,
is awakened, at night, by a large stone thrown against his
window at this, he puts his head out of the window and
inquires what is wanted, and is answered "the delivery of all
of his money, otherwise his house would be burned"
because of which, and observing in an alley adjacent to the
mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one the men, who, on the
next morning was found dead on the same spot. Shall this
man be declared exempt from criminal responsibility as
having acted in just self-defense with all of the requisites of
law? The criminal branch of the requisites of law? The
criminal branch of the Audiencia of Zaragoza finds that
there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but
not that of reasonable necessity for the means, employed,
and condemned the accused to twelve months of prision
correctional for the homicide committed. Upon appeal, the
supreme court acquitted the condemned, finding that the
accused, in firing at the malefactors, who attack his mill at

night in a remote spot by threatening robbery and

incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877). (I Viada,
p. 128.)
A careful examination of the facts as disclosed in the case at
bar convinces us that the defendant Chinaman struck the fatal blow
alleged in the information in the firm belief that the intruder who
forced open the door of his sleeping room was a thief, from whose
assault he was in imminent peril, both of his life and of his property
and of the property committed to his charge; that in view of all the
circumstances, as they must have presented themselves to the
defendant at the time, he acted in good faith, without malice, or
criminal intent, in the belief that he was doing no more than

exercising his legitimate right of self-defense; that had the facts

been as he believed them to be he would have been wholly exempt
from criminal liability on account of his act; and that he can not be
said to have been guilty of negligence or recklessness or even
carelessness in falling into his mistake as to the facts, or in the
means adopted by him to defend himself from the imminent
danger which he believe threatened his person and his property
and the property under his charge.
The judgment of conviction and the sentence imposed by
the trial court should be reversed, and the defendant acquitted of
the crime with which he is charged and his bail bond exonerated,
with the costs of both instance de oficio. So ordered.