On the night of the 5th of April, 1906, as Aquilino Navesaga, the accused Daniel Gampo, and their corporal Pedro Nadela, members of the municipal police, armed with  revolvers, were patrolling the barrio of Lavis, town of Talisay, Island of Cebu, they saw at a distance a group of individuals who, as afterwards wan found, were playing cards in a  paddy field, and, in order to find out what they were  doing and the reason why they were thus gathered together, the police ordered them not to move from where they were, but instead of obeying, everyone, with  the  exception of one, who turned out to be Leon Ocampo, started to run.  The accused went in their pursuit, and, when at a distance  of about 10 brazas from one of the fugitives, he fired  his revolver  twice without his shots taking effect, but, managing to get within a distance of about 2 brasas, the accused fired again at the fugitive, hitting him  in the right  arm, fracturing it,  the  wounded man  thereupon falling to  the ground  face downwards; notwithstanding the fact that Corporal Nadela shouted to him to stop  firing, the accused again fired at close range at the deceased, who was still lying on the ground, the bullet entering  his back on the right  side and coming out through the chest. In  consequence  of said wounds the assaulted man,, who turned out to be Julian Lavandero, died instantly.

A complaint having been filed charging Daniel Campo with the crime of homicide, and the corresponding proceedings having been instituted,  the court, on the 31st of July, 1900, sentenced the accused to the penalty of fourteen years  eight months  and one day of reclusion temporal, to suffer the accessory penalties, to indemnify the heirs of the deceased in the sum of 1,000, and to pay the costs.  From said judgment the accused appealed.

The facts stated above, fully proven in this case, constitute the crime of homicide defined and punished under article 404 of the Penal Code, inasmuch as in the violent death of Julian Lavandero, a resident of Talisay, Island of Cebu, caused by the use of firearms, none of the qualifying circumstances of article  403 of said  code,  determining a graver crime and penalty, are present.

The accused,  Daniel Campo, pleaded not guilty, but as to his exculpatory allegations, that when trying to arrest the deceased  the  latter offered resistance and attacked him with a  sickle, and that for said reason he was obliged to fire at him, the record contains full evidence that there was no such resistance or aggression on the part of the victim; that the sickle belonged to Venancio Panila, who was not one of the gamblers and was at that time working in a cocoanut tree; that the accused, notwithstanding the orders given by the corporal of police, Pedro Nadela, to stop firing at the  gamblers who were running away, continued to do so without reason therefor and without any resistance having  been offered by the parties fleeing, and particularly on the part of  Julian Lavandero; that  the accused used up all the cartridges with which  his revolver was loaded; that notwithstanding the fact that the deceased had been wounded in the right arm and in consequence had fallen to the ground, said accused still fired at him at point-blank range,  as testified  to by eyewitnesses. Such  conduct shows that without any  reason whatever he intended to  kill Julian Lavandero, who was running away unarmed and had offered  no resistance at all, and  that the aggressor disobeyed the orders of  the corporal to  stop firing at the person ho was  in pursuit of;  therefore, his action can not be  classified as mere negligence, but as a real crime of homicide  willfully and feloniously committed.   The accused could not  allege that he acted in the compliance of a duty or in the lawful exercise of a right, because in the case in question he was not authorized  to shoot in order to capture an individual who was fleeing and who offered no resistance; whatever.  The supremo court of Spain, in  its decision  of the 6th of  October, 1887,  has  among other things held, that "the exorcise of public authority does not warrant the use of force except in the extreme case of where one is attacked and finds no other means to comply with his  duty and  cause himself to be respected and obeyed."  The unfortunate Julian Lavandero was running at but a  short distance  from his pursuer, lie was unarmed,  and had offered no resistance; the accused, however, without the least justification  fired several shots at him, wounding him in the right arm, and after he had fallen to the ground fired still another  shot in his back at such close range  that the  clothes  of the deceased were found to be burnt; in consequence  the latter died instantly.

In the commission of the crime herein no mitigating or aggravating  circumstance  is present; therefore the adequate penalty should be applied in its medium  degree.

For the reasons above set forth, and the judgment appealed from being in accordance  with the law, it is our opinion that the same should be affirmed with the costs against the accused, provided, however, that he shall be further sentenced to suffer the accessory penalties imposed by article 59 of the code.  So ordered.

Arellano, C. J.,  Mapa, Johnson,  Willard, and Tracey, JJ., concur.
Carson, J., reserves his vote.