US vs.

SUBINGSUBING L-10736

Montealto's wife was approached by a Japanese man Mariano. Juan Subingsubing who
approached the place where they were and told the Japanese to let the woman go
because she was married. At that instant her husband, Pablo Montealto 78 yrs old,
came in defense for his wife. Mariano suddenly hit him in the face, shoved him down to
the ground, then got on top of him and with one hand choke while beating him with his
fist. Subingsubing, witnessing the fight, furnished Pablo with a gaff. Eventually, Pablo
stabbed Mariano and freed himself from strangulation. Mariano died the next morning.

Pablo and Subingsubing were charged ,with homicide but Pablo was later on acquitted
for the the circumstance of self-defense, but convicted Juan Subingsubing for having
furnished Montealto the weapon with which he mortally wounded his assailant. With
this, Subingsubing appealed on several ground, first, It was the weapon handed over by
Subingsubing to Pablo that freed himself from Mariano, preventing such danger and
imminent risk of death. Moreover it does not appear that in furnishing his co-defendant
Montealto the weapon was actuated by revenge, resentment, or other illicit motive.

As the use Montealto made of said knife in defending himself has been judicially held to
be lawful and right, so must the act of Subingsubing in furnishing the weapon in the
perilous situation and since the latter, who used the weapon, was declared to be
exempt from responsibility in repelling the attack , so must also Subingsubing be
acquitted and declared exempt from any responsibility,

there actually was committed the crime of homicide, comprised under article 404 of the Penal Code,
for, as consequence of the assault made by the deceased Japanese upon Pablo Montealto, at the
time when said Japanese was on top of his victim, throttling him and beating him with his fist, he was
suddenly stabbed in the left side of the abdomen by said Montealto. It does not appear that there
concurred in the commission of the homicide any qualifying circumstance to classify the crime as
murder, but there did concur the circumstance of self-defense, which affords complete exemption
from responsibility and which was admitted by the trial court on the ground that the defense Pablo
Montealto, an old man of 78 years

trial judge freely acquitted the defendant Pablo Montealto for inflicting the mortal wound upon his
assailant, the Japanese Mariano, but convicted Juan Subingsubing for having furnished Montealto
the weapon with which he mortally wounded his assailant.

that he was finally able to free himself from the peril of certain strangulation was due to the small
weapon which in the midst of such danger and imminent risk of death Juan Subingsubing furnished
him, according to the finding in the judgment appealed from. Moreover it does not appear that in
furnishing his co-defendant Montealto the weapon with which to defend himself Juan Subingsubing
was actuated by revenge, resentment, or other illicit motive, the third requisite established by the
law; and since in holding the defense Montealto offered to the assault of the Japanese to be lawful,
and in declaring him exempt from all responsibility the trial judge had to hold that Montealto was
compelled by reasonable necessity to make use of a small knife to repel the unlawful attack that
seriously jeopardized his existence,

As the use Montealto made of said knife in defending himself has been judicially held to be lawful
and right, so must the act performed by Subingsubing in furnishing it to sad Montealto in the perilous
situation n which the latter found himself; and since the latter, who used the weapon, was declared
to be exempt from responsibility in repelling the attack of which he was the victim and in wounding
his assailant therewith, the logical consequence of that declaration of exemption from responsibility
is that Subingsubing, who furnished the legitimate weapon used in his defense, be also acquitted
and declared exempt from any responsibility, because he did not incur it in any way by giving the
weapon to Montealto under the circumstances set forth.

For all the foregoing reasons the judgment appealed from should be reversed in the portion referring
to the defendant Juan Subingsubing and we must acquit him,

G.R. No. L-10736             August 31, 1915

THE UNITED STATES, plaintiff-appellee,

vs.
JUAN SUBINGSUBING, defendant-appellant.

Celestino Rodriguez for appellant.

Attorney-General Avanceña for appellees.

TORRES, J.:

The present case was instituted upon presentation by the provincial fiscal in the Court of First
Instance of Cebu of an information dated December 17, 1914, charging Pablo Montealto and Juan
Subingsubing with the crime of homicide. Judgment therein was rendered, on March 4 of the present
year, holding Montealto not guilty of said crime, freely acquitting him, with one-half of the costs de
oficio, and ordering that he be set at liberty forthwith; and holding guilty thereof the other defendant,
Juan Subingsubing who was sentenced to the penalty of one year and one month of prision
correccional, a penalty two degrees lower than that fixed by the law, on account of the occurrence in
his favor of three very pronounced mitigating circumstances with no aggravating ones, and to one-
half of the costs. From this judgment the defendant Subingsubing has appealed.

In the evening of October, 25, 1914, Pablo Montealto's wife was walking along one of the streets of
the municipality of San Remigio, Islands of Cebu, and when near the cockpit she was accosted by a
Japanese called Mariano who made to her unchaste and indecent proposals, which she at once
rejected. Thereupon said Japanese violently seized one of her hands and refused to turn her loose
in spite of the suggestion of Juan Subingsubing who approached the place where they were and told
the Japanese to let the woman go because she was married. At that instant her husband, Pablo
Montealto, came up to take part in the struggle that had been begun, whereupon the Japanese, after
having insulted the woman with a slanderous phrase, let her go and immediately turning upon her
husband Pablo Montealto, and old man of 78 years, suddenly hit him in the face, shoved him down
to the ground, then got on top of him and with one hand choke while beating him with his fist.
In this situation, Juan Subingsubing, fearing that the person assaulted would come to grief,
according to his declaration on the stand, approached the combatants and said to Montealto, "Don't
move," for he was going to pull the assailant off; whereupon he heard Montealto say that he
(Montealto) had stabbed the Japanese with a gaff such as is used on gamecocks. When Montealto
was asked why he had wounded his assailant, he replied that it was because the latter had
attempted to abuse his wife and had attacked him. But it appears in the case that the eyewitnesses
of the fight, Alipio Sinining, 12 years of age, testified that in the midst of the fight, when Montealto
was stretched out on the ground, with the Japanese on top of him choking him, Juan Subingsubing
went up close and handed him something, but the witness did not clearly see the object so secured
by Montealto. (Folios 76, 80, and 91.)

The investigation made by the justice of the peace at the place where the Japanese lay seriously
wounded shows that the latter had a wound in his abdomen toward the left side under the last rib, 3
centimeters in length and 2 in width. As a result of the seriousness of the wound the man died the
next morning.

From the facts related it appears that there actually was committed the crime of homicide, comprised
under article 404 of the Penal Code, for, as consequence of the assault made by the deceased
Japanese upon Pablo Montealto, at the time when said Japanese was on top of his victim, throttling
him and beating him with his fist, he was suddenly stabbed in the left side of the abdomen by said
Montealto. It does not appear that there concurred in the commission of the homicide any qualifying
circumstance to classify the crime as murder, but there did concur the circumstance of self-defense,
which affords complete exemption from responsibility and which was admitted by the trial court on
the ground that the defense Pablo Montealto, an old man of 78 years, had to offer against the rough
assault of which he was the victim on the part of the Japanese called Mariano, middle-aged man of
strong and robust physique, was attended by the three requisites explicitly set forth in No. 4 of article
8 of the Penal Code. On this ground the trial judge freely acquitted the defendant Pablo Montealto
for inflicting the mortal wound upon his assailant, the Japanese Mariano, but convicted Juan
Subingsubing for having furnished Montealto the weapon with which he mortally wounded his
assailant.

The case does not afford satisfactory and conclusive proof that the defendant Subingsubing gave a
gaff such as is used in cockfighting to Pablo Montealto at the moment when the latter supine on the
ground, beaten, crushed, and choked, and in peril of being strangled by his assailant, the Japanese
Mariano, for the only incriminating circumstance that appears in the case is the testimony of the
eyewitness, a boy 12 years old, who stated that Subingsubing handed something which said witness
could not see very well to Pablo Montealto while the latter was held down by his throat and supine
on the ground under his assailant. This testimony of the 12-year-old Sinining boy is contradicted by
the defendants Montealto and Subingsubing, the former of whom avers that he wounded his
assailant with a gaff such as is used on gamecocks, which he had in his shirt pocket and which he
seized to defend himself from the serious assault of the Japanese.

If this confession of Pablo Montealto be allowed to outweigh the testimony of the Alipio Sinining, it
follows that the defendant Juan Subingsubing, who on his part denies the action ascribed to him, is
wholly cleared of the charge and the law requires that he be acquitted in this case; but even should
we admit the finding of the trial judge that the fact was true and duly proven that Juan Subingsubing
furnished the weapon with which Montealto wounded his Japanese assailant, we must still
investigate whether even from this point of view the defendant Subingsubing has incurred criminal
responsibility.

This individual performed no physical act in defense of Pablo Montealto. He did not attack or even
lay hands on the person of the Japanese who had Pablo Montealto on the ground throttling him,
therefore the case does not fall under No. 6 of article 8 of the Penal Code, which reads: "Anyone
who acts in defense of the person or rights of a stranger, provided that the first and second
circumstances mentioned in paragraph four are present, and the further circumstance that the
person defending be not actuated by revenge, resentment, or other evil motive."

But even holding the fact of furnishing a small, short knife to the person assaulted, Montealto, when
the latter was in a critical position and plainly unable to defend himself, to be an act of assistance, it
is still unquestionable that there concurred the first and second penalties of No. 4 of article 8,
because Montealto, previously offended by the Japanese who was somewhat drunk with tuba when
he insulted Montealto's wife, was then unlawfully assaulted by the Japanese who placed him in a
situation from which it was difficult, if not impossible, to flee, or to avoid or repel the attack made
upon him; that he was finally able to free himself from the peril of certain strangulation was due to
the small weapon which in the midst of such danger and imminent risk of death Juan Subingsubing
furnished him, according to the finding in the judgment appealed from. Moreover it does not appear
that in furnishing his co-defendant Montealto the weapon with which to defend himself Juan
Subingsubing was actuated by revenge, resentment, or other illicit motive, the third requisite
established by the law; and since in holding the defense Montealto offered to the assault of the
Japanese to be lawful, and in declaring him exempt from all responsibility the trial judge had to hold
that Montealto was compelled by reasonable necessity to make use of a small knife to repel the
unlawful attack that seriously jeopardized his existence, it is just and logical to hold that in furnishing
said weapon to the person assaulted Juan Subingsubing employed rational means tending to aid
Montealto in legitimately defending himself and in repelling that unlawful attack.

As the use Montealto made of said knife in defending himself has been judicially held to be lawful
and right, so must the act performed by Subingsubing in furnishing it to sad Montealto in the perilous
situation n which the latter found himself; and since the latter, who used the weapon, was declared
to be exempt from responsibility in repelling the attack of which he was the victim and in wounding
his assailant therewith, the logical consequence of that declaration of exemption from responsibility
is that Subingsubing, who furnished the legitimate weapon used in his defense, be also acquitted
and declared exempt from any responsibility, because he did not incur it in any way by giving the
weapon to Montealto under the circumstances set forth.

The guilt of the accomplice who has furnished the weapon or any instrument for the crime is
embraced in that of the principal, who has by his responsibility for the crime incurred the penalty
fixed in the Code, even though he may have succeeded in getting away or fleeing or may have
afterwards died; but when the perpetrator of the homicide is present and has been tried and
acquitted on the ground of complete exemption from responsibility, this acquittal is inconsistent with
the conviction of the defendant who took no part in the deed and who did not defend the victim from
the assault of which he was the object, but merely furnished him the weapon with which he
reasonably and legitimately defended himself and repelled the said assault.

There are many cases of exemption from criminal responsibility on the ground of defense of a third
person, decided under the provisions of No. 6 of article 8 of the Penal Code, according to the
precedents established by the supreme court of Spain in applying the corresponding article and
paragraph of the penal code of that country, as may be seen in its decisions of November 11, 1905,
and December 4, 1906, and the principles followed by the courts of the North American Union are in
conformity with the doctrine established in these and other cases.

If one who defends a third person under the conditions and with the requisites the penal law lays
down for exempting him from responsibility should be acquitted of the charge in a case prosecuted
against him, then when a person who did nothing more than furnish a weapon to one whom he saw
in peril and in great need of defending himself and repelling a serious assault, as Juan Subingsubing
was doing and where the person assaulted made lawful and reasonable use of the weapon
furnished him and he has been declared exempt from responsibility, it is illogical and unjust to deny
to said assistant the same exemption from responsibility and the exoneration granted the slayer on
the grounds of self-defense, as was held in the same judgment to be lawful and right.

For all the foregoing reasons the judgment appealed from should be reversed in the portion referring
to the defendant Juan Subingsubing and we must acquit him, as we hereby do, with the costs de
oficio. The bond filed for his release will be canceled. So ordered.

Arellano, C.J., Johnson and Araullo, JJ., concur.

Carson, J., concurs.