No, 1744. July 19, 1938] PEOPLE OF THE PHILIPPINES, plaintiff and appellee, x. ANASTACIO APOLINAR, defendant and appellant PENAL LAW, HOMICIDE, DEFENSE OF PROPERTY AS EXTENUATION FOR CRIMINAL LIABILITY. ~ The deceased, upon receiving the fatal blow, was earrying on his arms a sack of palay coming from the land tilled by the defendant, fis said: That the Tight to propery is not of such importance as right to life, and defense of property can be invoked as a justifying circumstance only ‘when it coupled with an attack on the person of one entrusted with suid property. (from the Decisions of the Supreme Court of Spain) APPEAL from a judgment of the Court of First Instance of Pangasinan. Fetix J ‘The facts are stated in the opinion of the court. HONTIVEROS, J, Midnight of December 22, 1936, the defendant and appellant Anastacio Apolinar alias Atong was at that time the occupant of a parcel cof land owned by Joaquin Gonzales in Pepalasen, La Paz, Umingan, Pangasinan. Armed with a shotgun, Atong was looking over said Tand when he observed that there was a man carrying @ bundle on his shoulder, Believing that he was a thief (of palay), the defendant called his attention but he ignored him, ThereaRer, the defendant fired in the air and then atthe person, who however managed to flee ‘The person, who would later be identified as Domingo Petras, was able to get back to his house and consequently narrated to Angel [Nitividad, the barrio chief, thet he bad 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 sie of the spinal column - which wounds were circular in form and a litle bigger than a quarter of an inch, according 10 the medical report of Dr. Mananguil, from which it could be inferred that the shotgun of the defendant was loaded with “The defendant surrendered to the authorities immediately after he incident and gave a swotn statement (Exhibit F) before the Justice of Peace of Umingan on December 23, 1936, He stated that on that night, upon seeing @ person coming from the water, carrying & sack filled with palay, he shouted to ask who it was but since there was no response, he fired in the ar. Then, he asked again, and Since the man gave no response still and instead turned around and started t0 flee, he fired at him. The defendant said nothing regarding any aguression (earlier) committed or attempted by said man toward the barrio chief Bonifacio Mendones, which aggression 4s now the basis of his defense before the Court of First Instance of Pangasinan when this issue was raisod. 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, Inthe present case, no bolo has been presented before the Court a quo, which would have supported the defense if indeed the deceased had been armed that night. WP Lay CID RARYuidence shows that upon getting seriously wounded, he was carrying the sack of palay on his arms coming ftom the land tiled by the defendant However, this is not sufisient for the defendant to be justified in shooting the decensed. The right to property is not of wach importance as right to life, and defense of property can be invoked as a justifying ciroumstance only when itis coupled with an attach ‘on the person of one entrusted with said property. Although legitimate defense canvot be appreciated in favor of the defendant in the case at bar, the extenuating circumstances of obfuscation can nonetheless be considered in his favor. (ad that of voluntary surrender tothe autborities. The presence of thee two circumstances without any aggravating circumstance reduces the sentence to the next lower penalty for the sentenced evime ie prisién mayor, pursuant to the provisicns of par. 5 of Article 63 of the Revised Penal Code. Considering the facts of the case, we decide that judyment must be modified. We believe tat it must be mosified by imposing on the defeadant and appellant an {ndeterminate Penalty with + minimum of 2 years of prision correcional and a maximum of 8 years and one day Of prison mayer With this modification, we airm al other respects ofthe appealed decision with costs agains! appellant. So ordered Horrilleno, Pres., Paras, Imperial and Albert, MM. concur Juugment modified.