These proceedings were commenced by a complaint filed by the  provincial fiscal in the  Court of First Instance  of Laguna on February 14, 1914, which was drawn up in the following terms:

"The undersigned charges Casiaho Banzuela and Anselmo Banzuela with  the  crime  of  homicide  committed  as follows:

"About the 24th of November,  1913, in the municipality of San Pablo, Province of Laguna, the said accused persons, neither of them being either the father, mother, legitimate or illegitimate child, ascendant, or spouse of Carlos Violan, did, intentionally, maliciously and criminally, kill the latter with a  dagger, pocket knife and monkey wrench an act committed in violation of law."

At the commencement  of the  hearing of  the  case, on March 2 of the same year, 1914, counsel for the defendants stated to the court that a  preliminary investigation of the matter had been held  in the pueblo of San Pablo and that in view of the evidence adduced therein the justice of the peace declared the defendant Anselmo Banzuela to be innocent, or rather that he was  probably not guilty of the crime charged; that the said charge freed Anselmo Banzuela from a charge in the Court of First Instance, unless & preliminary investigation be again held with respect to him, and  for these reasons the said attorney  moved that the name  of Anselmo Banzuela be stricken from the complaint.

The fiscal, in turn, stated that the defendants had in fact been accused in the justice of the peace court, the information being supported by affidavits which the court had deemed sufficient to order the defendants' arrest;  that in the preliminary investigation, which he  attended,  he did not believe it advisable for the prosecution to exhibit all its evidence, wherefore he presented only one witness, and the justice of  the peace stated it to be his opinion that Anselmo Banzuela was innocent; but that such expression of  opinion could not warrant the exclusion  of defendant from the proceedings nor free him from the complaint, inasmuch as a preliminary investigation had already been held.  He added, furthermore, that he objected to a new investigation being made with respect  to  this defendant.  After again hearing counsel for the defendant,  who  insisted that, in conformity with the provisions of section 2 of Act No. 194, the accused Anselmo Banzuela was entitled to a preliminary investigation, the court denied the said attorney's  motion to exclude.  Immediately  thereafter the latter  excepted to this ruling and moved the court to hold a preliminary investigation, previous  to determining  whether there was probable cause for the prosecution of his client.  This petition was  denied by the court, on the ground  that it had just declared that such investigation had already been held. An exception to this ruling was also taken by counsel for the said accused.

Thereupon the said attorney announced that  the two accused waived arraignment and pleaded not guilty.   After due  trial  the Court of First  Instance,  on March 7, 1914, rendered judgment in  which.it held that the said Casiano Banzuela  and Anselmo Banzuela were guilty of the crime of homicide as charged in the complaint, with no extenuating or aggravating circumstances, and sentenced each  of them to 14 years, 8 months and 1 day of reclusion temporal, with the  corresponding accessory penalties, to indemnify jointly  and severally  the family of the  deceased in the sum of P1,000, and to pay each one-half  of the costs.  From this judgment the defendants appealed, and their counsel has alleged in this instance that the lower court erred:

"1. In continuing these proceedings against Anselmo Banzuela, inasmuch as in the preliminary investigation they were dismissed with respect to him.

"2. In  denying his petition that a preliminary investigation first be held before compelling  him to answer the complaint.

"3. In subjecting him to a trial in criminal proceedings without previous judicial declaration of probable cause.

"4. In sentencing him  without due process  of law.

"5. In finding the appellant Casiano Banzuela guilty and not allowing in his favor the  exempting  circumstance  of lawful defense.

"6. In sentencing the appellant Anselmo Banzuela,  notwithstanding that the evidence shows his entire innocence.

"7. In not allowing the defendants the benefit of reasonable doubt."

The general provision contained in section 13 of General Orders No. 58 is  explicit.  It provides that when a complaint is  laid before a magistrate,  he  must examine, on oath, the  informant or prosecutor and  the witnesses,  and if he be satisfied that  the crime complained of has been committed, and that there is reasonable ground to believe that the party charged has committed it, he must issue an order for his  arrest and admit him to bail if the offense is bailable.

Very  explicit  also are the general provisions contained in section  14 of the same General Orders, pursuant to which, if the  magistrate  believes from the evidence submitted, either' that the crime complained of was not committed, or that, if  committed, the person  charged  did not commit it, he must set the person  at liberty; but such  release shall not prevent the filing of a new complaint or information and the arrest of the accused thereon at  any time before the prosecution of the offense shall be barred by the statute.

With respect  to  the procedure which must be followed when the crimes charged are alleged to have been committed in the provinces of the Philippine Islands, with the exception of the city of Manila, that is, within the limits of the respective municipalities of such provinces, the provisions of section 1 of Act No.  194 of the Philippine Commission are also very clear and precise.   They prescribe that every justice of  the peace in the  Philippine Islands  is vested with authority to make a preliminary investigation of any crime  alleged to have been committed within his municipality, jurisdiction to hear and determine which was vested in the judges or Courts of First Instance; and, further; that it shall be the duty of every justice of the peace, when written complaint under oath has been made to him that a crime has been committed  within his municipality and there is reason to  believe  that any  person has committed the same  which complaint the justice believes to be well founded, to issue  an order for the arrest of the accused and have  him brought before the justice of the  peace for such preliminary examination.

In connection with the provisions of the said section 1 of Act No. 194,  those of section 2 of the same Act are also clear and precise, according to which, when the accused is brought before the  justice of the peace, it shall be his duty to inform the accused person of the charge, to give him an opportunity to examine  the complaint and the  affidavits, if any, of all the witnesses in support thereof, to make a preliminary investigation of the charge, in the manner and form  provided in this section,  and, upon the conclusion  of the preliminary investigation, if the justice of the peace is of the opinion that there is reasonable cause to believe that an offense has been committed and that the accused is guilty thereof, he shall so declare and shall adjudge that the accused be remanded to jail for safekeeping to await the action of the judge or the Court of First Instance, unless he give bail for his appearance; but, if the justice of the peace be of the opinion that no crime has been committed, or that there is no reasonable ground to believe the accused guilty thereof, the justice of the peace shall order the discharge of the accused.

This same section  further provides however, that  such discharge shall not operate as a final acquittal of the accused, but he may be again arrested and prosecuted for the same offense.

The legal provisions above cited recognize and affirm the right of every person charged with the commission of a crime to a preliminary investigation,  or to have preliminary proceedings  conducted such as shall tend to show whether the crime charged was committed and whether there is reasonable ground to believe that the accused committed it, before he be imprisoned and subjected to trial.  Such preliminary investigation, which in general terms is prescribed in the said General Orders  No.  58, or the law of criminal procedure now in force, may, pursuant to section 39 of Act No. 183, as amended by section 2 of Act No. 612, be  made by the prosecuting attorney of the city of  Manila,  in cases triable in the courts  of the other  provinces of the  Archipelago, when  the crime was committed  within their respective jurisdiction,  and shall be conducted subject to the provisions of  the said Act No.  194, as amended by  Acts Nos. 1450 and  1627.  Section 37 of this last  Act  amended section 1 of Act  No. 194 in the sense that  the  Court of First Instance  of  the province,  or  the justice of the peace of the provincial  capital  or of the municipality in which the provincial jail is located, when directed by an order from the judge of first instance, shall have jurisdiction to conduct such investigations at the expense of the municipality wherein the crime or offense was committed, though alleged to have been committed anywhere  within the province.

The diligent foresight of the legislator in granting jurisdiction for the conduction of preliminary investigations or proceedings,  not only to  the justice of the peace courts, within whose jurisdiction  the  crime complained of was committed, but also to any justice of the peace of the province, to the justice of the peace  of the provincial capital and to the Court of First Instance itself, shows the purpose of the law to be that no person charged with the commission of any crime shall be  deprived of that right.

The preliminary investigation which must be conducted by  the justice of the peace, is,  pursuant to  the provisions of Act No. 194, the necessary and indispensable commencement of the proceedings against  the accused, for its purpose is to determine whether there is reasonable cause to believe that the crime complained of has been committed; whether the accused is guilty  thereof and  whether there is reasonable ground for  believing that he committed it,  before depriving him of his liberty and subjecting him to trial. If such determination  be in  the affirmative and in conformity with the provisions of  section 2 of the same Act, the justice of the peace  orders the  imprisonment  of the accused or his release on  bail and places him at the disposition of the Court of First Instance for such action as the latter may deem proper, then beyond all doubt the proceedings must be continued against the accused, after the filing of  the requisite  complaint by  the provincial fiscal.  But where such  determination be  in the negative,  or what amounts to the same thing, when the  justice of the peace, as this same section 2 prescribes, is of the opinion that no crime has been  committed, or that there is no reasonable ground to believe the accused guilty thereof, the justice of the peace, by imperative  mandate of  the  law, must order the discharge of the accused, and this having been  done and the accused, consequently,  not having been  placed at the disposition  of the Court of  First  Instance  for  such action as  might be proper in the premises, as in the above case, it is unquestionable  that the proceedings initiated by the justice of the peace court, or to put it better,  the  commencement of the proceedings against the accused had in the justice of the peace court, was terminated and can not serve as a basis for the prosecution or trial of the accused in the Court of First Instance.

The fact,  then,  that a preliminary investigation was made before the justice  of  the peace  of San Pablo with respect to Anselmo Banzuela in the matter  of  the  crime of which he was charged in these proceedings -an investigation which, as the provincial fiscal stated at the opening of the trial,  resulted in the finding that the said accused was innocent and,  consequently, in his being ordered released, could not serve as a bar, as the provincial fiscal and lower court understood, to another preliminary  investigation with respect to the same accused by virtue of the complaint filed against him by the said fiscal.  There was no need to base or  ground the same, because it could have no  such basis or  grounds,  on the  previous preliminary investigation conducted in the said justice  of  the  peace court with respect to the  same accused, Anselmo Banzuela, which investigation, as aforesaid, terminated with the declaration that there was no reasonable ground for believing that he was guilty of the crime  of which  he had been charged.  It  differed  from the information  filed against the other accused, Casiano Banzuela, who had been placed at the disposition of the Court of First Instance by the justice of the peace  court,  and whose arrest had already been ordered by the latter precisely for the purpose definitely intended  by the  law,  that is,  the  filing of  the required complaint against him by the provincial fiscal.

If the preliminary investigation conducted with regard to Anselmo Banzuela could be or could have been lawfully utilized by the provincial  fiscal for the purpose of filing the complaint against the said accused and of prosecuting the action against him  wherein he was sentenced, in the same manner that the said fiscal  utilized  the preliminary investigation had  with respect to the other accused, Casia»o Banzuela, who also was tried and sentenced by virtue of the aforementioned  complaint, to the provisions of  which we have just referred, the precept  of said section 2 of Act No. 194 would be entirely useless, for there would  be  no difference whatever between the  action  of the  justice of the peace in  ordering the arrest of an  accused person and placing him at the disposition of the Court of First Instance, because in his opinion reasonable grounds existed for believing that the accused was guilty of the crime charged in the information, and  in  the  justice ordering the release of an accused person and not placing him at the disposition of the Court of First Instance, because of his opinion that there were no  grounds for believing that the said accused was guilty  of  the  crime  charged against  him.   In  brief, the declarations  and determinations which, in such a contrary  sense, the justice of the  peace  as a result of the preliminary investigation  would have made and adopted in accordance with  the provisions of the law, would produce the same effect for the provincial  fiscal, for the Court of First Instance  and upon the rights of the  person charged with a crime.  That would be a downright absurdity.

Precisely  that  which shows that the Court of First Instance cannot avail itself of the preliminary investigation held by  the  justice of the peace, in accordance with the provisions of Act No.  194, for the purpose  of ordering the arrest of the  accused  and subjecting  him to  a criminal action in which  a judgment of conviction may be pronounced upon him, when, as a result of the said preliminary investigation, the justice  of the peace  who made it had ordered the release of the accused because of  said court's opinion that no reasonable grounds  existed to believe the accused  guilty or  that he committed  the crime, is that both General Orders No. 58, in its section 14, and Act No. 194, in  its  section 2, explicitly provide that  in such an event the release ordered  by  the magistrate or  justice of the peace who  made the investigation shall not  be understood to operate as a final acquittal of the accused, shall not prevent the filing of a new information or complaint and the arrest of the accused  thereon at any time before the prosecution  of  the offense is barred by the  statute.

It is in this  sense that  it may be  understood,  as stated by the Court of  First Instance in  deciding the  motion in question presented  by counsel for Anselmo Banzuela, that the opinion  of  the  justice  of the peace  with regard to the result of the preliminary investigation is not res judicata; but this does not mean that the Court of First Instance, as understood and stated by the trial court in ruling on the said motion, is authorized to review the  preliminary  investigation made by the justice of the peace court and may, if he finds that the latter erred in finding  that there were no reasonable  grounds to justify the prosecution of the accused, utilize the preliminary investigation for the purpose of ordering the temporary imprisonment of the accused and subjecting him to trial, notwithstanding that the justice of the peace who made the investigation ordered his release. Preliminary proceedings are  not  brought up  before the Court  of  First Instance either  in  consultation  or  on appeal, but their result serves the fiscal as a basis on which to file the complaint, the accused, meanwhile, whom the justice of the peace has found guilty and for this reason has been  temporarily  imprisoned  awaiting trial or  has been released on bail, being at the disposition of the Court of First Instance.

For this same reason the fiscal cannot file a complaint against an  accused person on the strength of the preliminary investigation, or by submitting the latter to the consideration of the Court of First Instance, when the justice of the peace court has found the accused not guilty of  the crime complained of,  has consequently ordered his release and has not placed him at the disposition of the said  Court of First Instance.   The trial court, therefore, erred  in holding that, inasmuch as the transcript of the testimony given by Jeremias Villanueva in the preliminary investigation conducted by the  justice  of the  peace of San Pablo  with respect to Anselmo Banzuela  showed there were  reasonable grounds to warrant this defendant's prosecution, the said trial court could consider the preliminary investigation requested with such insistency by  Anselmo Banzuela's attorney to be unnecessary because that investigation had already been held before the justice of the peace of San Pablo.

It being  unquestionable that the said investigation had was absolutely worthless as a basis for the complaint filed by the provincial fiscal against Anselmo Banzuela, and the law having explicitly recognized and established the right of any person, accused of a crime, not to be deprived of his liberty or subjected to trial until after a preliminary investigation has been made from which it is shown that there are reasonable  grounds to believe him guilty of the crime charged  against him, it is beyond all  question that  the defendant Anselmo Banzuela was deprived of his  liberty, tried and sentenced in this cause by virtue of a complaint filed against him  by  the provincial fiscal of Laguna on February 14, 1914, without due process of law, that is, without the holding of the proper preliminary investigation with respect  to him as requested by his attorney at the commencement of the hearing in this cause.  Consequently, the Court of First Instance of Laguna incurred the first four assignments of error specified by the defense in its brief, errors  which  nullify the judgment rendered against  the said defendant and  all the  proceedings had  with  respect to him in the said trial.  The order to release the accused, Anselmo Banzuela, given by the justice  of the peace court of San Pablo in that preliminary investigation, must not, however, be understood to operate as a final acquittal, nor does that  order  prevent the filing of  a new complaint against him, for the  crime  has not yet prescribed; and after the complaint has been  filed by the  provincial fiscal of Laguna the proper preliminary  investigation must be held and the Court of First Instance must take such action as the law requires upon the termination of the proceedings.

With respect to the defendant  Casiano Banzuela, the defense contends in  its brief  that he should  be exempted from all criminal  liability for the death of Carlos Violan because this  defendant acted in  lawful self-defense, the three requisites for such exemption which are required in article 8, No. 4, of the Penal Code having concurred.

In support of his  theory, the defense admits that there was a  struggle between the defendant  Casiano Banzuela and Carlos Violan and that the latter died as a result of the wounds inflicted upon him during that struggle.   In relating what occurred between these two men the defense, in fact, says in its brief:

   "The struggle reached such a pitch that the assailant and the assaulted party approached very near each other, and it was then that Casiano Banzuela  was able to use his weapon and stab the  deceased a number of times in  the breast, in the stomach and, finally, once in the neck, thus piercing the spinal cord, and  upon striking this blow  not only Carlos Violan, but also Casiano Banzuela fell down. Carlos Violan fell never to rise again,  for he felt  that he was dying from the wounds he had received."

It was proved at trial that the struggle to which  the defense refers and which took place  between defendant Casiano Banzuela and  Carlos Violan, occurred a little after 4  o'clock of the  afternoon of the 24th of November, 1913, on one side of the main street of  the  barrio of Balanga, pueblo of San Pablo, Province of Laguna; that Carlos Violan died a few  moments after he  had fallen,  as a result of the wounds he received in that struggle, his inert body remaining stretched out at full length  near the gate of a fence until  after dark when the lieutenant of the barrio and other agents of the  authorities appeared at the place, picked up the corpse and carried it to the pueblo; that in the meantime the defendant, Casiano Banzuela, who had started to flee  as  soon  as Carlos Violan fell  mortally  wounded, disappeared from the sight of the many persons who  had witnessed the struggle, and kept in hiding that night in a deserted part of one of the neighboring barrios and afterwards in  a shack belonging to a relative of his,  and that the police who went to find and arrest him did not discover him during the  time that elapsed  from the afternoon of the 24th  of  November,  when  the  crime was  committed, to the 23d of the following month of December, when the defendant gave himself up to the municipal president of the pueblo of Alaminos of the aforesaid  province.

On the morning of the day following the  commission of the crime the corpse of Carlos Violan was examined by Doctors Jose M. Delgado and Justiniano Jaojoeo, and was found  to  present eight wounds,  all of them  produced by a stabbing instrument, except one, which was inflicted by a stabbing and cutting instrument.   The first wound was oh a line  between the two sternal and mammary lines, on a level with the fourth left intercostal space, and reached and made a deep incision in the heart; the second,  in the fifth intercostal space of the right side, half  a centimeter above the right nipple, injuring the lung on the same side; the third,  in  left side  of the umbilical region, affecting the peritoneum and the intestines; the fourth, in the abdominal cavity,  on a level with the eleventh rib, also injuring the peritoneum and the intestines; the fifth,  in the lower part of the left mastoid region, injuring the  spinal cord; the sixth, in the left lateral part of the region  of the left hypochondrium, and which affected only the muscular sheath; the seventh, in the  posterior part of the middle axillar line, on a level with the eighth rib of the left side; and the eighth, in  the outer side of  the first joint  of the thumb of the  right  hand.  The first  five of these wounds were necessarily mortal; the sixth was slight, and the last two were  of minor importance.

The physician  and president of the municipal board of health Doctor  Jaojoco, having also examined the defendant Casiano Banzuela,  on January 20 of the  following year, 1914, (for, as aforesaid, this defendant had disappeared and his whereabouts were not discovered until the 23d of December of the previous year 1913),  it  was found  that he had eight healed wounds apparently caused by a cutting instrument.  The first wound was in the upper right side of the occipito-parietal region; the second, in the  lower portion of the  left antero-Iateral part of the neck; the third, in the lower part of the outer side of the right arm; the fourth, in lower third of the back of the right  forearm; the fifth,  in the lower part of the back of the same forearm; the sixth, appearing to be a continuation of the fourth and fifth wounds,  in  the back of the right hand; the seventh on the lower and inner part of the back of the left  hand; and the eighth, in the  right upper side of the epigastric region, and, as a continuation of  this wound,  a scar two and a half centimeters long of a wound that only injured the skin.  As stated by the said physician in his certificate, Exhibit 1 of the defense, these wounds were apparently caused by a cutting instrument, the second, fourth, fifth, sixth and eighth of them being superficial.

It was also proved at the trial  that before 4 o'clock in the said afternoon of  the 24th of November, 1913, Casiano Banzuela and Carlos Violan were gamblirfg at monte in the barrio  of Balanga; that because Banzuela would not trust Violan for a bet of half a peso which the latter had made on a card, a  quarrel arose  between them during which Violan struck Banzuela a blow on the neck with his bolo, the same weapon which produced the cicatrized superficial wound found  by Doctor  Jaojoco  when  he  examined this defendant on January 20,  1914, and one of those mentioned in the certificate, Exhibit 1.  It is likewise proved that that dispute was settled and the two disputants were separated by the efforts of Francisco Munda, a resident  of the said barrio  of Balanga, who, on seeing that they were wrangling and that Casiano Banzuela was wounded in the neck, said to them, after learning the cause of the dispute,  that it was not worth  while for them  to continue  to act  that way; that he took hold of Carlos Violan and led him toward the street to a point about 250 meters away from the scene of the  quarrel; that meanwhile the defendant Casiano had withdrawn; that witness did not continue to  accompany Violan, because his (Munda's)  wife did not allow him and obliged witness to return home with her;  that, therefore, witness left Casiano at the side of the street, advising him to take a carromata or the train and withdraw.

The  defendant Casiano Banzuela  took the stand in his own behalf, and in relating what occurred after Francisco Munda had separated him from  Carlos Violan,  said that he, Casiano, continued on his way in the direction of Tiaong for the purpose of boarding the train there; that  just as he had started  he heard a  voice say:  "Wait, Casiano;" that he then turned his head and saw that it  was Carlos Violan who was calling him; that he thereupon quickened his steps and almost ran, but that Violan pursued and overtook him and struck him a blow on the head which made him stagger, and afterwards, another cut on his right arm; that defendant then drew out his pocket knife and Violan thrust at him with  the bolo he, Violan, was carrying; that defendant fell sideways against the fence to avoid the blow, and, while  in this position, Violan struck him another blow which he parried with his left hand, for  it was aimed at Kis neck; that Violan struck him another  blow and he defended himself with his right hand in  which he held the pocket knife,  and believed that it  was with  this weapon that he wounded his assailant; that Violan continued to strike him while  he defended  himself and fell back; that, as he saw that his life was in  danger because  his assailant wished to  kill him, he grappled  with Violan, caught him by the neck and struck him on the breast and  the stomach, wounding him when  they were near the fence; that the struggle  ended by  their falling down together; and  that when they fell defendant  saw that his pocket  knife was sticking in Carlos' neck and he drew it out.

Victorino Montecillo, a witness for the  defense,  testified that he saw Carlos Violan, who was carrying a bolo, pursue the defendant  and strike  him a blow  on the  head.  He related what then occurred between these two men and his story was  the same  as  that told by the  defendant.  He further stated that "when  Carlos saw that his blows were not effective,  on  account of the nearness  of Casiano to Carlos, he rushed  upon Casiano and seized  him  by  the throat, notwithstanding which Casiano  struck him a blow in the direction of his shoulder, and it  was then I saw that they both fell."  This witness finally  added that when he was going away, frightened by what  he had seen, he turned his  head and saw that Casiano was getting up.

No other witness testified at the trial that, after Francisco Munda had separated Casiano Banzuela  and Carlos Violan, the former already having the wound in his neck  inflicted by the latter with his bolo, Violan pursued this  defendant, and that as a result of pursuing and  overtaking him the struggle  between them took place  which resulted  in the death of  Carlos Violan.

On the contrary, when Francisco Munda, who was obliged by his wife to retire to his house with her and leave Carlos Violan in the street, was already separated  from the defendant and  at some distance from him, in  front of and about to  enter his house,  he glanced down the street and saw these two men  fighting at a  distance of about 120 meters from  him.  It is  therefore strange that  he  should not then  have seen Carlos Violan pursue the defendant.

Leon de Silva, who was also that afternoon in the vicinity of the place where the struggle took place, for he had gone there  to gamble, and saw Francisco Munda  accompanying Violan, testified that  after  a little  while Munda left the latter; that a moment later the defendant appeared and, on approaching Violan,  unsheathed  his weapon, as  the latter did his, and the two men began to fight, so  witness said, when  they were about 20 meters distant from him.  It is also strange that at  that moment this  witness should not have seen Carlos  Violan  pursue the defendant. On the court's endeavoring to ascertain which  of the  two combatants  struck  the first blow, this  witness  answered the questions which were put to him in the following manner:

"Court: Do you know who struck first ? A. Both of them struck at the same time.

"Q. Who are the two who struck each other at the same time? A. Carlos and Casiano.

"Q. Whom did Carlos strike? A. One struck  the other and at the same time the other stabbed in return."

Victor  Cobel, who that afternoon  passed along the same road on his way from his rice field in Tiaong to the  barrio of Santa  Cruz, and was, as he himself stated, in the crowd of spectators, who numbered more  than thirty,  and at a distance of 20 meters from the combatants, saw that  Carlos Violan and the defendant were fighting, and that the latter had a dagger and the former a bolo. He also saw the defendant snatch away the bolo carried by his opponent, and saw the latter fall with blood on his breast.   He then left the place.  Neither  did this witness, in relating what he saw, make mention  of  having  seen Carlos Violan  pursue the defendant.

It cannot be denied that the fact of Carlos Violan having struck the  defendant a cut on the neck with his bolo when the altercation arose between them, caused by this defendant's refusal to loan Violan half a peso for a bet in the game, was an unlawful assault; but as the two disputants had  already  been  separated by Francisco Munda,  as the one had already gone away from the other, and as a considerable time elapsed  between the moment the defendant was  wounded by Carlos Violan with his  bolo and the time when the two armed men fought in a place other than that where they had the altercation, though in the same  barrio, the said unlawful assault can not be held to be sufficient to exempt the defendant from criminal liability, nor can the act performed by the latter in killing Carlos Violan be considered an act of lawful self-defense against that assault, as claimed by his attorney, because, in order that an unlawful assault may  be set  up as  a defense for  the purpose of such exemption from liability in  accordance with the provisions of article 8, No. 4 of the Penal Code, it is necessary that the assault be immediate, imminent, and that the person who  defends  himself  therefrom find himself attacked or threatened by a danger which may be visited upon him in the very moment when he acts in self-defense.  The harm caused by one person to another who offended or caused him injury, some time after he suffered such  offense or such injury, does not constitute an act of self-defense, but an act of revenge which can find no justification whatever in the eyes of the law, even though the harm or the offense inflicted upon him be  an  aggression  which is considered by the statute to be unlawful.

Although the defendant stated at the trial, and his testimony was corroborated  by a  witness, that after he had already been separated by Francisco Munda  from Carlos Violan and was going toward Tiaong there to take the train, he was pursued and overtaken by Violan who struck him with his bolo, a statement used by the defense as a ground for maintaining that  for the  second  time  the defendant was unlawfully assaulted by Violan and found it necessary to employ the means  he did employ, which under those circumstances were reasonable,  to  repel the assault  by wounding Violan,  who was not  provoked by the defendant, no credence  can  be given to such testimony in view of that produced by the witnesses for the prosecution who were  there present and  saw what then  occurred  between Violan  and the  defendant.  The truth of their testimony can not be doubted, for there is not  an iota of evidence in the record  to induce the belief that these  witnesses for the prosecution  had any interest whatever in making the criminal act performed by Casiano Banzuela appear to be more  serious than it actually was.  On the  other  hand, it is more likely that the defendant Casiano Banzuela would try to obtain revenge for the ill treatment  inflicted upon him by Carlos Violan and to return evil for evil when the two men found themselves  in the same road,  now free from all intervention on the part of  Francisco Munda, and that he should pursue  and attack Carlos Violan, than that the latter, who must already have been satisfied, because a few moments  before,  he had wounded the defendant, should have again attacked and assaulted him.  Moreover, the location and number  of the cicatrized  wounds found on  Casiano Banzuela one  month and a  half  after the occurrence,  the greater+
 part of them superficial and the rest of very slight importance,  show  that he could not  have  been  pursued and attacked by Carlos Violan with a bolo, as related by the defendant himself  and his witness Montecillo, before this defendant attacked  Violan with his dagger, which, besides a monkey wrench, he carried about with him since the morning of the day of the crime,  according to  the testimony of Vicente Luistro, because he would have been rendered incapable of making  such a furious assault upon Carlos Violan  and  causing him so many  and such serious wounds as he did, leaving him almost dead on the edge of the road and fleeing, not again to appear for more than a month.  This latter detail indicates also that he did not consider himself free from responsibility for the act performed  by him, for otherwise he would immediately have surrendered himself to the authorities and under their protection would have had nothing to fear from the relatives of the deceased.  It was  the persecution of the latter, he claimed, that forced him to keep in hiding during that period of time.

That  Carlos Violan  was  not the first to attack the defendant Casiano Banzuela, but that these two men, on meeting each other on the road as soon as they were free from Francisco  Munda's  interference,  attacked  and wounded each other, is shown in a positive and conclusive manner by the testimony of Leon de Silva who virtually corroborated these facts, for he saw Carlos Violan while the latter was still  accompanied by Francisco Munda; he also  saw that after a  while Munda left Violan, and he likewise saw that shortly  afterwards  the defendant  Casiano Banzuela appeared  and on  approaching Violan  he unsheathed his weapon, as Carlos likewise did, according  to the language of this witness, and they began to fight.  This witness also testified that the weapon  the  defendant carried  was  a dagger, while that carried by Carlos Violan was  a bolo. Witness stated that he  saw all this while he was at a distance of only twenty meters from the combatants.

Consequently, the struggle or the duel to the death between the defendant Casiano Banzuela and  Carlos Violan took place without prior  unlawful aggression  on the part of the deceased.  Two  men on meeting each other on the road, attacked one  another reciprocally, one of them with a bolo and the other with  a dagger; "they  both cut each other,"  according to the language  used  by the witness Francisco Munda, and "they both struck each other at the same time,"  as stated by Leon de Silva, nor did either of them relax his obstinate determination to cause the greatest possible harm to the other,  as shown  by the number of wounds they both were found to have received, nor did either  try to escape or free himself from the attacks of the other,  as either of them could have done,  being as they were surrounded by a large number of persons among whom  they could have  found  some protection  or help, although these onlookers,  terror-stricken at the sight of such a bloody spectacle, did not venture to interpose themselves  between the combatants.

As unlawful  aggression by the offended party  is an essential and primal element of just defense and a requisite prescribed in No. 4 of article 8 of the  Penal Code, as the first and most fundamental  condition  necessary to work exemption from criminal  liability in self-defense; and as the killing  of  Carlos  Violan by the defendant Casiano Banzuela was the result of a struggle between them, with no unlawful aggression on the  part  of the deceased, the trial court did not err in not allowing in behalf of this defendant the said circumstance of exemption from liability, and in finding him guilty of the crime of homicide, provided for  and punished by article 404 of the  Penal Code, without any circumstance modifying such  liability, and, finally, in imposing upon him, as was  done in  the judgment appealed from, the  penalty fixed  for the said  crime in its medium degree, with the accessory  and other penalties therein specified.

For  the foregoing reasons, we affirm the judgment appealed  from, with respect to the defendant Casiano Banzuela, with one-half of the  costs of both instances; provided, however, that the  indemnity in  the sum of P1,000 to the family of  the deceased, to the payment of which the said defendant was sentenced,  shall not be satisfied jointly and severally with the other defendant, Anselmo Banzuela.  We set aside the judgment appealed from and declare null and void all the proceedings had at trial, excepting the complaint,  with respect to the defendant Anselmo  Banzuela, with one-half of the costs de oflicio, and after the proper preliminary investigation has been held by virtue  of the said complaint, the lower court shall proceed in accordance with law as regards this defendant.   So ordered.

Torres, Carson and  Trent, JJ., concur.
Johnson, J., dissents.