Provincial Inspector Captain Godofredo Monsod received from Major Guido a telegram of the following tenor: “Information received escaped convict Anselmo Balagtas with bailarina and Irene in Cabanatuan get him dead or alive.”
Accordingly, Captain Monsod showed a copy of the above-quoted telegram and a picture of Balagtas to corporal Alberto Galanta, privates Nicomedes Oralo, Venancio Serna and D. Fernandez, and chief of police Antonio Oanis.
They were instructed to arrest Balagtas and, if overpowered, to follow the instruction contained in the telegram.
Upon ascertaining the whereabouts of Balagtas, Appellants Oanis and Galanta, and private Fernandez went to the place where Irene was supposedly living.
At Irene’s house, Oanis approached one Brigida Mallare and asked her where Irene’s room was. Brigida indicated the place and said that Irene was sleeping with her paramour.
Oanis and Galanta then went to the room of Irene, and upon 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. However, 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.
Whether or not appellants incurred no criminal liability by reason of mistake of fact in the performance of their official duties.
In support of the theory of non-liability by reasons of honest mistake of fact, appellants rely on the case of U.S. v. Ah Chong.
The maxim is ignorantia facti excusat, but this applies only when the mistake is committed without fault or carelessness.
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.
And, as once held by this Court, a deliberate intent to do an unlawful act is essentially inconsistent with the idea of reckless imprudence, and where such unlawful act is wilfully done, a mistake in the identity of the intended victim cannot be considered as reckless imprudence 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 RPC.
According to such legal provision, a person incurs no criminal liability when he acts in the fulfillment 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 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.
Under the circumstances of the case, the crime committed by appellants is murder though specially mitigated by circumstances mentioned.