[G.R. No. 4704. April 26, 1909.

THE UNITED STATES, Plaintiff-Appellee, v. JOAQUIN GIL, Defendant-Appellant.

Kincaid & Hurd and Frank E. Green, for Appellant.

Attorney-General Villamor, for Appellee.

SYLLABUS

1. CRIMINAL PRACTICE AND PROCEDURE; MURDER. — Held, That the facts proven sustain a finding of the guilt
of the accused of the crime of assassination.

2. ID.; RIGHTS OF ACCUSED; DYING DECLARATIONS. — The American authors of the Philippine Bill and of
General Orders, No. 58, must be presumed to have borrowed the provisions of the Constitution of the United States,
securing to accused persons the right of confrontation and cross-examination of the witnesses against them, subject
to the well-established exceptions which have always been recognized under the rule as laid down by the
Constitution of the United States; these provisions were never intended to render inadmissible dying declarations in
criminal cases, touching the circumstances leading up to the death for which the prosecution is instituted.

3. ID.; EXPERT WITNESSES. — Whether the opinion of a witness who claims to be an expert or skilled witness is
admissible or not is to be determined by proof of his skill and special knowledge as to the subject matter of the
particular question propounded; and the existence o the capacity to testify as an expert arises in theory as a new
inquiry from question to question.

4. PREMEDITATION. — The period of time necessary to justify the inference of deliberate predetermination is a
period sufficient in a judicial sense to afford full opportunity for meditation and reflection, and sufficient to allow the
conscience of the actor to overcome the resolution of his will if he desires to hearken to its warnings.

DECISION

CARSON, J. :

The information filed in this case charges the accused, Joaquin Gil, with the crime of assassination, in that on the
27th day of December, 1907, in the city of Iloilo, he entered the office of Benito Lopez, governor of the Providence of
Iloilo, and then and there treacherously (con alevosia) and with deliberate premeditation fired four shots from a
loaded revolver at the said Governor Benito Lopez, who was at the time engaged in the execution of the duties of his
office as governor, and inflicted upon him four wounds from the effects of one or all of which he died on the 20th day
of January, 1908.

It was conclusively proven that on the morning of the 27th of December, 1907, the accused entered the office of
Governor Lopez, who was at that time alone in his office, engaged in the transaction of public business; that a short
time thereafter four pistol shots were fired in the office; that a few moments later Lopez ran from the room in a
wounded condition, pursued by the accused with a smoking revolver in his hand; and that Lopez died twenty-four
days later as a result of the wounds received on that occasion.

Gil, the accused, testifying in his own behalf, stated that he went to the government building on the morning in
question for the purpose of taking out a license to keep in his possession a revolver; that learning that the governor
was unoccupied he entered his office, took a few steps toward the governor who was unoccupied he entered his
office, took a few steps toward the governor who was seated at his roll-top desk, at the same time drawing the
revolver from its holster, and with the pistol lying in his outstretched hand addressed to the governor the question:
"May I?" (Se puede?); that the governor glanced up at him, with a "fierce" look on his face, and resumed his work at
his desk; that nothing more was said or done for a considerable space of time, not less than five minutes, when the
governor raised his head and said: "What do you want?" that he (Gil) then approached the desk where the governor
was seated and told him that he had come to ask for the favor of a license for the revolver; that the governor
forthwith, and without the slightest provocation of Gil’s part, answered in an insulting manner, upbraiding Gil for his
temerity in seeking a favor of a man whom he had denounced to higher authority, and wound up his insulting and
abusive tirade by calling Gil an infeliz ("miserable creature," or as translated by counsel for defense "coward") and an
hijo de puta (son of a whore); that he, Gil, then fell into a fit of ungovernable rage, which was the more intense
because it is true that he was born out of lawful wedlock, and the governor having reached for the revolver, a struggle
ensued during which the shots were fired, but that he, Gil, had so completely lost control of himself and was so filled
with rage and indignation by the aspersions on his own and his mother’s name and reputation, that he could not
remember whether he himself had fired the shots which wounded the governor, or whether the pistol had been
discharged accidentally in the course of the struggle for its possession.

The prosecution, on the other hand, insists that the shooting was the result of a deliberate, willful and premeditated
plan; that Gil went to the government building on the morning in question, not for the purpose of securing a license,
but with intent to kill his enemy, the provincial governor, incited thereto by intense hatred and animosity, which had
been engendered by bitter personal and political quarrels; that his pretense of securing a license was a mere pretext
adopted for the purpose of securing admission to the office of the governor, while the latter was alone; that when he
entered the office the governor was seated, not at the desk as alleged by the accused, but at the end of a long table,
where he was engaged in writing an official indorsement; that the accused crossed the room to a point about half way
down the length of the table, where he stopped and immediately commenced firing at the governor, who being
unarmed arose from his seat, and attempted to escape into the adjoining office, the accused pursuing him into a
corridor connecting the two offices.

If the account of what occurred in the office of the deceased governor on the morning of the 27th of December, 1907,
as told by the accused when testifying in his own behalf, be accepted as true, this testimony, taken together with the
other evidence of record not in conflict therewith, would leave no room for doubt of his guilt of the crime of unlawfully
taking the life of Benito Lopez, deceased, the commission of the crime being marked with certain extenuating
circumstances, but unmarked either by "treachery" (alevosia) or "deliberate premeditation" (premeditacion conocida)
as charged in the information; and as the slayer was alone with his victim when the fatal shots were fired no
eyewitness could be called to the stand to contradict the testimony of the accused as to what occurred in the office
from the time he entered until the explosion of the pistol shots attracted the attention of the other occupants of the
building. In our opinion, however, the ante-mortem statement of the deceased, taken together with the other evidence
of record, conclusively establishes not only the falsity in all its essential details of the account of the tragedy given by
the accused, but also the fact that the crime was committed with treachery (alevosia) and deliberate premeditation
(premeditacion conocida).

The dying declaration of the wounded man is set out in full in the following extract from the testimony of the fiscal o
the Province of Iloilo (translated from the original Spanish), which was fully corroborated by the testimony of the
justice of the peace of Iloilo:jgc:chanrobles.com.ph

"Q. Did you see Governor Lopez on the 20th of January, 1908? If so, where?

A. Yes, sir, at the Mission Hospital.

"Q. At what hour of the day did you see him?

A. I saw him between 7 and 8, or perhaps a little later.

"Q. In which part of the Mission Hospital did you see Governor Lopez?

A. In the room where they placed him and where Governor Lopez was lying in bed.

"Q. In what physical condition was Governor Lopez at the time you saw him?

A. We noticed that his breathing was so labored that it seemed to me that he was in a dying condition.

"Q. Who were in the room at the time?

A. I went in twice, the last time to get his testimony — I, Captain Lewis, Colonel La Garde, I, Arsenio Jimenez, the
justice of the peace, a sick American woman, and Doctor Hall — those are the persons whom I saw.

"Q. What conversation did you have with Governor Lopez at that time, if any?" (I object to that, as immaterial and
irrelevant.

"Overruled.

"Exception.)
"A. I asked him if he was convinced that he would die and whether he had any hopes of living.

"Q. What was the first question you asked Governor Lopez?

A.’Are you convinced that you are going to die, and have you no hopes of living?’ He answered ’Yes.’

"Q. Was there any other conversation?

A. Yes, sir, I then asked him: ’Was there any provocation on your part against Gil?’ ’None,’ I then asked him, ’Did you
insult him?’ He answered, ’Not at all.’ I then finally asked him, ’How did it happen?’ He answered, ’Gil came in and
fired at once’. In view of the fact he had almost said the last word, and was breathing in more labored fashion, and
that he bade us ’good by,’ we could not proceed [to question him] because we thought he was dying.

"Q. Was this testimony put in writing?

A. No; because we had sent for a stenographer as we had been told that he could only live a few minutes, and the
stenographer did not arrive.

"(I object because it is not an answer to the question.

"It is not sustained.

"Exception.)

"A. We had sent for a stenographer but, in view of the fact that he was long in coming and the physicians had told us
that in all probability he would not live more than 2 to 5 minutes, as soon as the justice of the peace arrived, we
entered the room in order to take the testimony."cralaw virtua1aw library

As will be seen, the dying declaration of the wounded man flatly contradicts the testimony of the accused as to the
alleged provocation and insult; — the chief bulwark of the defense against the evidence of the prosecution tending to
prove the existence of deliberate premeditation; and it as flatly contradicts the statement of the accused, that he did
not fire the fatal shots for some five minutes after he entered the office and not until a wordy quarrel had arisen during
which his opponent had full opportunity to assume an attitude of defense, of which he availed himself; — the chief
bulwark of the defense against the evidence of the prosecution tending to prove that the accused committed the
crime with "treachery" (alevosia), in that he opened fire on his unarmed and defenseless victim without giving him
time or opportunity to offer resistance. But it must be admitted, as claimed by the counsel for the defense, that the
account of what occurred, as given by the dying man, is so meager and incomplete that, in itself, and if it were not
corroborated by other evidence of record, as will hereinafter appear, it would be by no means sufficient to sustain a
finding of the falsity of the account given by the accused.

The trial court found that it was conclusively established by the testimony of the witnesses who saw the accused
enter the governor’s office and later heard the shorts fired, that the shooting took place within a few moments after
the entry of the accused, the interval not being more than long enough to give the accused time to walk from the door
to the point at the side of the table from which, as claimed by the prosecution, the other evidence in the record shows
the accused fired at least one shot. There appears to be some uncertainty in the testimony of some of the witnesses
as to the precise duration of this interval of time, but we think that he weight of the evidence fully sustains this finding
of the trial court and corroborates the truth and accuracy of the ante-mortem statement, while it conclusively
demonstrates the falsity of the testimony of the accused in this regard.

We think, too, that there can be no reasonable doubt of the falsity of the statement of the accused that when he
entered the office the government was seated, writing, at a roll-top desk which stood in one corner of the office the
truth being that he was seated at the end of the long table mentioned in the following extract from the testimony of
Captain Lewis, who examined the office immediately after the shooting:jgc:chanrobles.com.ph

"Q. You may examine this plan and state if it represents accurately the governor’s and secretary’s office in the
provincial building at Iloilo?

A. I can not say if it is exact because I have not measured it, but as far as I know it is correct. I have been in the
governor’s office a number of times and I noted the different pieces of furniture on the day the governor was shot;
they appeared that day as they are here on this map.

"Q. The table at the point A in the governor’s office — I will ask you if it occupied the same relative position as is
represented on this map, on the 27th day of December, 1907?

A. Yes, sir.

"Q. The desk C in the governor’s office — I will ask you if it occupied the same relative position as is designated on
this plan, on the 27th day of December, 1907?

A. It did.

"Q. In the secretary’s office the desk at the point P, designated as the secretary’s desk — I will ask you if that desk
occupied the same relative position in the secretary’s office as is designated on this plan, on the 27th of December,
1907?

A. It did.

"Q. I will ask you if the desk R in the secretary’s office occupied the same relative position as it does on this plan —
on the 27th of December, 1907?

A. Yes, sir, it did.

"Q. And the desk S, did it occupy the same relative position on the 27th of December, 1907?

A. It did.

"Q. When you returned to the governor’s office or when you went to the governor’s office on the 27th of December,
1907, state whether or not you observed anything on and about the table A. If so, what?

A. There was a blotter at the end of the table where the circle marked D and on top of the blotter there was an
indorsement, or communication that had two indorsements on it, and a little farther up on the blotter in front of the
chair was the envelope that had been opened on the end, addressed to the Honorable Governor of Iloilo Province; a
little nearer the chair was a scratch pad lying down with a sheet something similar to the size of regular legal size
typewriting paper — had part of an indorsement written on it — with ink, in the governor’s handwriting and as I read it
— it was in Spanish, and as I read it — ’Respectfully returned to the Executive Secretary of the Philippine Island,
inviting his attention to the preceding indorsement’ with the date of December 27, 1907, at the top; the pen was lying
down about the center of this piece of paper as if dropped, judging from the drop of ink under the point of the pen to
the right at the margin of the sheet of paper which he was writing on — partly on the sheet and partly on the blotter;
there were other pieces of paper lying around and other correspondence that had not been opened.

"Q. State whether or not when you made that examination there was a chair near the end of this desk at the point
marked D.

A. Yes, sir; facing the desk, inclined to the left of the position of a man sitting — as if some one had gotten up and
passed to the left.

"Q. What, if anything, did you find or observe upon the desk C?

A. There were some books lying on top of each end of the desk and in the center there was a straw hat that I
recognized as being that of the governor by seeing the name written inside of the sweat band; it was a telescope hat,
and on top of it there was a paper case; roller-top desk, and sitting at the back of it was a revolving office
chair."cralaw virtua1aw library

That at least one shot was fired at the deceased as he was in the act of rising from his seat at the end of the long
table appears from the foregoing extract from the testimony of Captain Lewis, read together with the following extract
from the testimony of Capt. Charles Gearhardt, of the United States Army, which was dully corroborated by the
testimony of Captain Lewis (both of these witnesses being men of long experience in handling firearms) and by the
testimony of Mr. T. L. Wilson, treasurer of the province, who with Captain Lewis carefully examined the position of the
bullet mentioned in Captain Gearhardt’s testimony, before it was extracted from the wall of the office in which it was
imbedded:jgc:chanrobles.com.ph

"A I will state that I first examined the hole and found that the bullet had entered not squarely into the wall but at an
angle, and it is plain to be seen by examining it by this magnifying glass that a part of the mortar of the wall has come
away and that the right-hand edge of it has crumbled somewhat. Examining the bullet you find that it has
mushroomed some, but it just fits — this bullet was handed to me as the one taken out of the hole in the wall — and
setting it in and holding it in place it fits very well; to determine the angle by the bullet from an examination by the eye
and using the magnifying glass and setting in the pencil which I have in my hand I determined the angle to be about
as I have it here now. I also verified this angle afterward, and by setting the bullet in and aiming that pencil so that by
having the pencil in place as I have indicated and following its trace back through the air as it naturally would have
gone I determined that, within narrow limits, to the best of my judgment, the pistol was held by some one standing
about in this position.

"Mr. Blanchard (interrupting). About the center of the south side of the table marked A.

"The Witness (continuing). The actual position held by the party firing the pistol would depend considerably upon his
height, for this line I have traced simply traces for one of about my height.

"Mr. Blanchard. I would suggest that the attention of Captain Gearhardt be called to the defendant as to his size.

"The Witness (after standing up alongside of defendant). The shoulders are almost the same.

"A. (continued.) Within limits, due to judgment and opinion, I should say that that is the path that the bullet went over
when it entered the wall — right over about here.

"Q. If a man were sitting in that chair — the chair marked D — at the time the bullet was fired from the position you
have indicated, and the bullet should pass through the right shoulder of the man, coming out at the back, in what
position in your opinion, would be the man shot?

A. I should say that the man was not sitting in the chair at the time he was shot; he was in the act of rising or had
partially risen."cralaw virtua1aw library

Four shots were fired, all of which took effect in the body of the deceased, and if the testimony of these witnesses be
accepted as correct (and the trial judge so accepted it after a personal examination of the relative positions of the
table, chair, and the hole in the wall with the bullet placed therein as it was found immediately after the shooting),
there can be no reasonable doubt that at least one shot was fired while the governor was in the act of rising from his
seat at the end of the table and before he had an opportunity to take any measures to defend himself.

The defense put one witness on the stand to corroborate the testimony of the accused as to the insulting language
addressed to him, and this witness swore that from an adjoining office he heard the governor make use of the word
infeliz ("contemptible creature" or "coward") and immediately thereafter the movement of a chair being pushed back
and the explosion of the pistol shot, but that he did not hear the governor make use of the words hijo de puta. The
prosecution offered a number of witnesses who, at the time of the shooting, were in the same office with the witness
for the defense and in other offices adjoining the governor’s office, and the testimony on this point tends strongly to
prove that if the insulting language quoted by the accused was used at all, it was used in a voice so low that it could
not be heard by anyone in the adjoining offices, although these offices were connected with the governor’s office by
open doors and windows through which the human voice could readily be heard, the passage of sound being
impeded merely by light screens intended to cut off the view from one office to the other. This testimony of itself is of
course not sufficient to sustain a finding that such language was not in fact used; but, taken together with the positive
denial contained in the ante-mortem statement, and keeping in mind the proven falsity of other essential details of the
testimony of the accused, the proof that shots were fired almost immediately after the accused entered the office, and
the fact that the witness who claims to have heard the word infeliz did not hear the words hijo de puta, although he
says that the governor was speaking in an "altered" (excited) tone of voice; we think that the trial court properly found
that no such series of insults had been directed to the accused by the deceased as were claimed by him, and that
beyond a reasonable doubt, the words hijo de puta were not used at all; and this conclusion is confirmed by the
consideration of the inherent improbability of his testimony in this regard, for it is difficult to believe that Governor
Lopez, if he were in his right senses, would, without provocation, hurl such deadly insults at his enemy while that
enemy was standing before him with a loaded revolver in his outstretched hand.

Thus far we have limited ourselves to a review of the evidence which tends to corroborate the wounded man’s dying
declaration that his assailant entered his office and without provocation immediately (en sequida) began firing upon
him, and to contradict the testimony of the accused as to what occurred in the office at the time when the shooting
took place. We shall now proceed to summarize the great mass of testimony which in our opinion tends directly to
establish the contention of the prosecution that the crime was the result of a deliberately premeditated plan.

This witness, Anastasio Penas, testified that he overheard the accused, just before he entered the government
building, tell his carromato driver to wait for him, but if he heard shots to drive home at once. Commenting on the
testimony of this witness, the trial judge says, "it is denied by the accused and strenuously attacked by his counsel"
but "in the opinion of the court it is true," and "the court believes this witness told the truth." We find nothing in the
record which would justify us in doubting the truth of the testimony of his witness or the correctness of the findings of
the trial judge in that regard.

Ramon Lopez, a brother of the deceased, who rushed into the office immediately after the shots were fired and found
the accused and his brother alone in the corridor running round the building, swore that when he came up to them,
and before he snatched the revolver from the accused, he asked what was the matter (que esta pasando?),
whereupon the accused exclaimed: "For some time past I have wanted to kill you — I have wanted to kill you!" (Hacia
ya tiempo que queria matarte — yo queria matarte.)

Jose Santiago, secretary of the provincial board of Iloilo, to whom the accused in his testimony referred as his
personal friend before the incident took place, swore that after the accused had been arrested and taken to the
provincial jail in the lower part of the government building, he (the witness) was directed by the provincial treasurer to
go to see the accused and find out if he needed anything, and that when he found the accused in his cell, he asked
him what had happened, to which the accused replied: "I had thought this thing out already." (Ya tenia eso pensado.)

Captain Lewis testified that, some little time after the shooting, the accused in his cell stated to him (in the language
of the witness), "that Governor Lopez had been instrumental through his brothers in trying to get a woman by the
name of Paz Buenaflor to make certain allegations against him in the Court of First Instance, since he had married
the daughter of Angel Corteza, in Molo" (about two weeks prior to the shooting), "and for that reason he stood under
the abuse of the governor as long as he could, and that he told him mujer (I interpreted that for his wife) the night
before, that he was going to see the governor the following morning and have a settlement."cralaw virtua1aw library

The accused vehemently denied having made the statements testified to by Captain Lewis, Santiago and Ramon
Lopez, and swore that he could not have made such statements, because, while he was politically opposed to
Governor Lopez, their personal relations had been friendly and he had harbored no such feelings of hatred and
animosity toward Lopez prior to the shooting as those statements would indicate. We are convinced, however, that
whatever friendly personal relations may have at one time existed those relations must have been strained to the
breaking point by the intensity bitter and acrimonious political quarrel which gave rise to the formal charges against
Governor Lopez of official misconduct, bribery, and other criminal offenses which were submitted by the accused to
higher authority and pressed by him in the official investigation which followed, during the month prior to the shooting;
and it is hardly credible that such friendly personal relations could have survived the filing of these charges by the
accused; and that the differences between the accused and Governor Lopez were not wholly impersonal and limited
to political issues is made very clear by the testimony of the father-in-law of the accused, who was called as a witness
for the defense, and swore that about a month before the shooting and a short time prior to the marriage of the
accused with the daughter of the witness, Governor Lopez tried to get the witness not to consent to the marriage,
telling him that Gil was a bad man and reminding him of Gil’s "mother’s antecedents."cralaw virtua1aw library

While it is possible that Ramon Lopez, the brother of the deceased, might have been actuated by sentiments of
revenge in testifying as he did, no such motives can be attributed to either Lewis or Santiago, and we thank the trial
court properly declined to believe the vehement denials of the accused, and rightly accepted the testimony of these
witnesses as a true and correct relation of the substance of the statements made by him, for there is nothing in the
record to justify the contention of the defense that they deliberately, willfully and maliciously invented these
statements; and the meaning and effect of their testimony can not be softened by any suggestion of
misunderstanding or mistake.

The fact that the accused, when he entered the provincial building on the morning in question, anticipated the firing of
pistol shots, and his admissions that what occurred had been thought out or planned before it took place, and that
stung by real or fancied personal wrongs he had told his wife the night before that he would have a settlement with
the governor on the following morning; convince us, beyond a reasonable doubt, that his real purpose in seeking
admission to the governor’s office was not to secure a license for his pistol, but to wreak, vengeance on his personal
and political enemy; and this conclusion is confirmed by an examination of the evidence of record as to the
circumstances under which the pretended application for a license was made, the manner in which he claims to have
submitted his application, and his conduct immediately after the shooting took place.

The accused himself admitted on the witness stand that he had owned the pistol in question since the days of the
insurrection (six years, more or less) without a license, and that it had been under his immediate control for more than
six months prior to the shooting; that on one occasion he had aided a friend in securing such a license from the
provincial inspector of Constabulary, and that while he did not know whether the provincial inspector was authorized
to grant such licenses without the intervention of the provincial governor, he had made no effort to learn whether this
was the fact or not. Even in the absence of evidence to the contrary, it would be difficult to believe that the accused,
in good faith, walked into the office of his enemy, and suddenly presented himself before that enemy with his loaded
revolver in his extended right hand, merely for the purpose of asking for a license therefor, and this without taking the
trouble to inquire whether the license could be obtained from another official who, he had reason to believe, had
authority to issue it, and with whom he had no quarrel; and the air of improbability of the story is increased when it is
remembered that although he had owned the revolver for many years he did not find it incumbent upon him to make
an application for a license until the precise moment when his personal and political quarrel with the deceased was at
its height; and that, despite the existence of that quarrel, his alleged desire to obtain the license at that particular time
was so great that, although it was necessary for that purpose to ask an official favor of his enemy, he could not await
the resolution of superior authority, which was still pending, as to whether his enemy’s reelection to office would be
affirmed, in view of the charges filed against him.

It also appears from the record, on the testimony of irreproachable witnesses, that immediately after the shooting and
before the accused was taken to the provincial jail, he was apparently in a state of tense mental exaltation, and gave
vent to cries to those around him which would tend to disclose that he imagined that he had just done a highly
patriotic deed, justified by the official misconduct of the man he had shot. Over and over again he exclaimed the
words "Justicia! Justicia!" (Justice), declaring that what he had done had been done for Justicia, and that he had no
wish or desire to make his escape; in a loud voice he cried: "Down with the tyrant!" (abajo con el tirano!), and
declaimed incoherently on the duties of a patriot; and finally, as he went downstairs under arrest, he called to those
around him: "Let us see if any of you will allow in my footsteps! (A ver si algunos de ustedes vienen en pos de mi!)
Such language, used at such a time and under such circumstances, would seem to be the ravings of a man who had
keyed himself to the commission of a desperate act by brooding on some real or fancied political wrong, rather than
the cries of one who had just slain his enemy in a sudden quarrel precipitated by unexpected and unprovoked
insults.

Other than the testimony of the accused himself, no evidence appears of record which in our opinion tends in
anywise to cast a doubt upon the truth and certainty of the findings hereinbefore set out, except only the testimony of
the witnesses who swore that on the morning in question, and accused, upon entering the government building, bore
himself so as not to give rise to suspicion of anything exceptional or extraordinary in his conduct, and that in
conversing with the clerks in the governor’s anteroom he indicated some indisposition to go in person to the office of
the governor to ask for the license for which he said he had come. We think, however, that, granting that the conduct
of the accused was as calm and collected as it was described by the witnesses and that he indicated an apparent
unwillingness to approach the governor in person, this conduct, in the light of the other evidence of record, must be
taken to be the result of an effort to live up to the requirement of his preconceived plan to gain admission to the office
of his known enemy of the pretense of seeking a license for his revolver.

Counsel for appellant lays great stress on the testimony of the witness who stated that he heard the deceased make
use of the word infeliz just before the shooting took place, and the testimony of one of the counsel for the defense,
who testified that soon after the shooting, while the accused was yet wild with excitement, the witness caught him by
the arm and shook him to bring him to his senses, whereupon the accused exclaimed: "He called me an infeliz!" —
"Who am I that I should be called an infeliz by a governor?" IN our opinion, however, this evidence in no way
weakens the force of the case made out by the prosecution; and indeed the evidence of the witness who testified that
he heard the word infeliz used before the shooting, if it is true tends rather to contradict the story of the accused in
one of its most essential details, and to confirm the theory of the prosecution as to the manner in which the shooting
took place. This witness testified as follows:jgc:chanrobles.com.ph

"I heard the governor’s voice in a somewhat altered tone. . . After a few moments I heard a word, among other words
infeliz, and almost in the same act I heard a movement of a chair as if someone were getting up, and at the same
moment I heard shots and that was when we began to run."cralaw virtua1aw library

As we have stated therefore, this evidence by no means corroborates the testimony of the accused as to the alleged
series of insults heaped upon him by the deceased; and indeed when it is remembered that the accused testified that
the exclamation hijo de puta immediately followed the use of the word infeliz, the fact that this witness for the defense
heard the word infeliz, and yet did not hear the words hijo de puta, a phrase which could not fail to strike the ear of
one who heard the word infeliz if both were in fact used, strongly corroborates the other evidence of record which
tends to prove that the deceased did not make use of the phrase hijo de puta; and so far as the apparently self-
serving statement of the accused made soon after the shooting, which was introduced by the defense, was
admissible at all, it tends to further corroborate this conclusion, for the reference to the use of the word infeliz and the
failure to refer to the really grave insult at such a time, strongly suggests that the addition of the latter to the language
put in the mouth of the deceased by the accused, was an afterthought falsely injected to give an appearance of truth
to his story of a sudden outburst of uncontrollable passion.

It will be observed also that the witness for the defense testified that "almost at the same moment" as he heard the
word infeliz he heard "a movement of a chair as if some one were getting up," and "at the same moment," he heard
shots. This testimony fully corroborates the circumstantial evidence introduced by the prosecution, which tends to
prove that at least one shot was fired while the deceased was sitting in or rather in the act of rising from his chair, and
clearly contradicts the statement of the accused, that all the shots were fired during a struggle with the deceased,
after the latter had attempted to take possession of the revolver.

It well might be that Governor Lopez, looking up from his desk where he was engaged in the transaction of public
business and wholly unarmed, and suddenly discovering his deadly enemy leveling a pistol at his head, should have
exclaimed infeliz ("miserable creature," or as translated by counsel for the defense, "coward") as he leaped to his
feet, but proof that he did make use of this particular word, without the additional phrase mentioned by the accused,
"almost in the same moment" as the shot was fired, in nowise supports the story told by the accused, nor does it
explain, nor justify, nor excuse his murderous assault.

In the light of all the evidence of record, the substance of which is hereinbefore set out, we are satisfied that it is not
true, as claimed by the accused, that having gone to the office of the governor merely for the purpose of seeking a
license for his revolver, he made use of the revolver in a sudden burst of passion aroused by the unprovoked insults
heaped upon him on that occasion; and we are of opinion that the evidence sustains a finding that his real purpose in
going to the government building on the morning in question was to take the life of his enemy; that the plan so to do
originated in his mind not later than the night before the morning on which the shooting took place; that that plan was
persisted in from the early hour at which he left his house until the time when he gained admission to the office of the
governor, a period of time long enough to justify us in holding that the crime was committed with deliberate
premeditation (premeditacion conocida), because, in a judicial sense, it afforded full opportunity for meditation and
reflection, and was amply sufficient to allow his conscience to overcome the resolution of his will (vencer las
determinanciones de la voluntad) had he desired to hearken to its warnings; this being the measure of the period of
time necessary to justify the interface of deliberate premeditation, as laid down in the case of the United States v.
Ricafor (1 Phil. Rep., 173), adopting the rule laid down by the supreme court of Spain in its sentencia dated
November 10, 1894.

We are satisfied, too, that the crime was committed with treachery (alevosia), because the evidence of record leaves
no room for doubt that, actuated by the hatred engendered by his personal and political quarrel with his enemy, he
sought his enemy alone in his office, and upon securing admission opened fire upon his victim, who was at the
moment engaged in the transaction of public business and wholly unarmed, without giving him an opportunity to
resist or to defend himself.

Counsel for the defense urges that the trial court erred in admitting the dying declaration of the deceased governor,
on the ground that its admission was in violation of the inalienable right of the accused to be confronted by the
witnesses against him, guaranteed by the provisions of section 5 of the Philippine Bill and by the provisions of
paragraph 5 [of section 15] of General Orders, No. 58. It must not be forgotten, however, that the guaranties
extended by Congress to the people of the Philippine Islands are to be interpreted as meaning what the like
provisions meant when Congress made them applicable to these Islands (Serra v. Mortiga, 204 U.S., 470; also
reported in 11 Phil. Rep., 762). And in the United States, the constitutional clause providing for the confrontation by
the accused with the witnesses for the prosecution, purported merely to adopt the general principle of the hearsay
rule, and to secure to the accused the right to cross-examine the infrajudicial witnesses against him, and did not
purport to enumerate all of the exceptions and limitations to that principle:jgc:chanrobles.com.ph

"There were (at the time of the adoption of the Constitution of the United States), a number of well-established
exceptions, and there might be others in the future; the Constitution indorsed the general principle (of the hearsay
rule), subject to these exceptions’ merely naming and describing it sufficiently to indicate the principle intended — just
as the brief constitutional sanction for trial by jury did not attempt to enumerate (all) the classes of cases to which that
form of trial was appropriate nor the precise procedure involved in it, and has always been construed as not absolute
and universal in effect, but as subject to the limitations and unessential variations understood to accompany that
institution." (Greenleaf on Evidence, Sixteenth Edition, Vol. 1, par. 163 and p. 283; Campbell v. State, 11 Georgia,
374; State v. McO’Blenis, 24 Mo., 416; Robertson v. Baldwin, U.S., 17 Sup. 326.)

The American authors of the Philippine Bill and of General Orders, No. 58, must be presumed to have borrowed the
provisions of the Constitution of the United States securing to accused persons the right of confrontation and cross-
examination of the witnesses against them, subject to the well-established exceptions which have always been
recognized under the rule as laid down by the Constitution of the United States, and it is clear that these provisions
were not intended to render inadmissible dying declarations in criminal cases touching the circumstances leading up
to the death for which the prosecution in instituted, for such declarations have always been regarded as an exception
to the general rule rejecting hearsay evidence, on the general principle, as laid down by Lord Baron Eyre, "That they
are declarations made in extremity, when the party is at the point of death, and when every hope of this world is
gone; when every motive to falsehood is silenced and the mind is induced by the most powerful considerations to
speak the truth. A situation so solemn and so awful as to be considered by the law as creating an obligation equal to
that which is imposed by a positive oath in a court of justice." The rule is the same as the rule of the Roman Civil Law,
"Morti proximum, sive moribundum, non praesumendum est mentiri, nec esse immemorem saluties aeternae; licet
non praesumatur semper dicere verum." (Mascard, De Probat. Concl., 1080, U.S. v. Montes, 6 Phil. Rep., 443.)

It has been suggested, however, that since a specific exception is found in General Orders, No. 58, to the rule
touching the confrontation of witnesses, as therein laid down, the expression of this exception should be taken to
exclude all other exceptions. The exception relied upon is as follows:jgc:chanrobles.com.ph

"Where the testimony of a witness for the prosecution has previously been taken down by question and answer, in
the presence of the accused or his counsel, the defense having had an opportunity to cross-examine the witness, the
deposition of the latter may be read, upon satisfactory proof to the court that he is dead or insane, or can not with due
diligence be found in the Islands."cralaw virtua1aw library

It is very clear, however, that this express provision for an exception to the general rule, which has not been
universally recognized in those jurisdictions where it has not been provided for by express legislation, can by no
means be regarded as intended to exclude the various general exceptions to the hearsay rule which have always
been recognized despite the existence of constitutional provisions securing the rights of accused persons to be
confronted by, and to cross-examine the witnesses for the prosecution.

That the declarant was conscious of his impending death, and that he spoke with the prospect of "almost immediate
dissolution" confronting him; that he understood the meaning and effect of his statements; and that he knew he was
addressing the law officers of the town and province wherein he lived, and informing them as to the circumstances
which led up to his death, are facts which we think are sufficiently established by the evidence of record: and the
admissibility of the dying declaration, resting, as it does, exclusively on the ground that the declarant was "in
extremis" at the time it was made, is in nowise affected by the failure of the law officers to secure the more formal and
detailed statement contemplated in the above-cited provision of General Orders, No. 58, which they might perhaps
have been able to obtain had they not been misled by the opinion of the attending surgeons that the wounded man
would probably recover.

Counsel for appellant also insist that the evidence of Captain Gearhardt and Captain Lewis as to the probable
trajectory of the bullet, which was found in the wall of the office, was inadmissible, on the ground that these witnesses
did not properly qualify as experts; and comment at considerable length on the worthless character of the testimony
of experts as rendered in judicial investigations generally. We agree with counsel that the admission of this class of
testimony, partly because of the want of satisfactory standards of expertness, partly because of its too frequently
conflicting and unreliable character, and partly because of its tendency to prolong trials and increase the expense
incident thereto, leads to abuses which renders its value as an aid to investigation of truth in courts of justice
exceedingly doubtful and problematical. And yet the need for such testimony appears to have justified its continued
use, and we can not say that it does not in some cases serve a useful purpose, when its inherent weakness and
danger of abuse are kept constantly in mind.

An expert has been defined to be one possessing, in regard to a particular subject or department of human activity,
knowledge not usually acquired by other persons (12 Am. & Eng. Enc. Law, 2d Ed., 424); and under this definition we
think that Captain Gearhardt and perhaps Captain Lewis may fairly be classed as experts, as to questions touching
the course and effect of bullets shot from small arms at moderate ranges, their long experience in the use of such
arms, with the professional obligation imposed upon them to study and familiarize themselves with their use and
manipulation as the tools of their trade, having, presumably, given to them a knowledge in such matters not usually
acquired by civilians. It is true that the frank admissions by these witnesses of their inability to solve a number of
hypothetical problems of a technical nature in the science of ballistics (problems which in the present status of human
knowledge on that subject may or may not be capable of satisfactory solution) would indicate that, unlike many more
pretentious expert witnesses, there are limitations to the extent of the knowledge they claim to possess; but we think
that, under the principles laid down in the following extract from Greenleaf, their capacity as expert witnesses to
answer the questions propounded to them as to the probable trajectory of the bullet found in the wall of the office was
not affected by such confessed limitations to the extent of their knowledge and to their capacity to answer every
question propounded to them by opposing counsel:jgc:chanrobles.com.ph

"It follows that there are no fixed classes of expert persons, in one of which a witness finds himself and remains
permanently. A person may be sufficiently skilled for one question, and totally unqualified for the next. He may be
competent to say whether the deceased had gray hair, and incompetent to say what killed him; competent to say
whether the deceased was approximately by gas, and incompetent to distinguish between coal gas and water gas;
competent to say whether a hatchet was sharp, and incompetent to tall whether a stain upon it was a human blood.
The witness may from question to question enter or leave the class of persons fitted to answer. It is desirable to
appreciate that expert capacity is a matter wholly relative to the subject of the particular question; that therefore the
existence of the capacity arises in theory as a new inquiry from question to question; and that a particular person is
not to be thought of as objectively or absolutely an expert, in the sense that he is absolutely a German or a negro or
six feet high." (Greenleaf of Evidence, 1st vol., 16th ed., par. 430 (a), p. 523.)

But whatever may be the value which should be given to the expert opinions expressed by these witnesses, and even
were we to disregard these opinions altogether, the trajectory of the bullet to which they testified must be taken to
have been established to the satisfaction of the trial judge and to ours (so far as it was proper for him to rely upon his
own opinion based on the facts proven, rather than on the opinion of expert witnesses) by the ocular examination of
the scene of the tragedy made by him at the request of counsel for defense, the facts upon which the experts based
their opinions having been submitted to him on that occasion in such manner as to afford him full opportunity to draw
his own conclusions without regard to the opinion of the witnesses.

On appeal, as well as in the court below, the conduct of Captain Lewis, and the trustworthiness of his testimony, have
been attacked with no little severity, but commenting on these criticisms the trial judge in his decision observes that
"Captain Lewis as senior inspector of Constabulary has simply performed his official duty as for as his action has
been apparent to this court, and he has merited commendation instead of blame for the faithful performance of his
official duty;" and while we agree with counsel for the appellant that Captain Lewis’s official position having imposed
upon him the duty of securing testimony and otherwise aiding the prosecution, a due regard for the frailties of human
nature imposes on us the obligation of scrutinizing his testimony with the utmost care, lest by any chance his interest
as a prosecutor might have biased his feelings as a disinterested witness; and while we recognize that, under the
circumstances, too much reliance should not be placed on his opinions or his recollection of facts as to which mistake
or misunderstanding might lead him astray; nevertheless we find nothing in the record which would justify us in
believing that there is any reason to doubt his honesty on intention or the truth or accuracy of his testimony as to facts
which mere bias on his part would not be likely to distort.

It appearing from the evidence of record that the accused was guilty, as charged, of unlawfully taking the life of Benito
Lopez, and that the crime was committed with treachery (alevosia) and with deliberate premeditation

(premeditacion conocida), and that his victim was engaged in the performance of the functions of his office, as
governor of the Province of Iloilo, at the time when the crime was committed, and the commission of the crime not
being marked by any extenuating circumstance, the accused was properly convicted of the crime of assassination,
and the penalty prescribed by law was properly imposed in its maximum degree. The sentence of death imposed by
the trial court should, therefore, be, and is hereby, affirmed, with the costs of this instance against the Appellant.

Arellano, C.J., Torres, Johnson and Willard, JJ., concur.

_____

G.R. No. L-2300 May 27, 1949

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARCELINO TUMAOB,Defendant-Appellant.

Emilio L. Galang and Roberto J. Ignacio for appellant.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Esmeraldo Umali for appellee.

TUASON, J.:

Marcelino Tumaob was found guilty of murder by the Court of First Instance of Samar and sentenced to reclusion
perpetua to indemnify the heirs of the deceased in the sum of P2,000, and to pay the costs. This is an appeal from
that judgment.chanroblesvirtualawlibrary chanrobles virtual law library

The uncontroverted facts are these: The defendant was a civilian security guard in the employ of the Surplus Property
Commission on the Island of Tubabao, municipality of Guiuan, Samar. On December 1, 1947, he was posted as a
sentry in the sentry box or shade outside a compound or so-called warehouse where surplus property was being kept
and which was a roofless affair enclosed by chickenwire on four sides with open gates at both ends and at one side.
Eduardo Basas, 17 years, ventured into that enclosure on the above mentioned date, at 10 o'clock a.m., and was
shot and killed. Basas' wound was thus described by an examining surgeon: "Gun shot wound in the right buttock
about 2 inches lateral from the tip of the coccyx right side. The slug traversed upwards obliquely perforating the small
intestine at five points and penetrated (passed through both walls) the internal eliac vein, right side, just below the
bifurcation of the abdominal vein. The bullet made its exit at the left side of the abdomen about 2 inches above the
unbilecal stump and 2 inches lateral to it."chanrobles virtual law library

The accused, shortly after Basas was shot, reported the killing to his superior officers and was placed under arrest.
What he told his superiors is not known. The direct evidence against him consists of what purports to be his
statement to the chief of police in which he is said to have admitted to be the killer, and an ante-mortem declaration of
the now deceased stating that he had been shot by one whom he did not know while he was gathering
firewood.chanroblesvirtualawlibrary chanrobles virtual law library

At the trial the defendant denied having made any statement to the chief of police. He gave substantially the following
version of the procedure:chanrobles virtual law library

On December 1, 1947, at about 10:00 a.m., he was on sentry duty in a sentry box or shade a short distance from the
SPC compound. Inside this compound he spotted a man from his post. He fired twice into the air to stop the intruder.
Then he walked into the compound passing through the front gate. Inside, not far from that entrance, he was fired
upon by someone whom then he could not see. When they had stopped shooting he fired in the direction of where
the gunmen were supposed to be. From his position, after he left off two shots, he saw two men dash away through
the rear or opposite gate. He came out of the front gate and turned around one side of the compound in pursuit of the
fleeing thieves. He did not open fire outside the compound because the men quickly disappeared in the jungle. After
that he returned to the compound and there saw Basas sprawled on the ground facing the side door and dying. Then
he reported the matter at the Investigation Section of the Surplus Property
Commission.chanroblesvirtualawlibrary chanrobles virtual law library

The accused stated that in the compound there were piles of boxes containing refrigerators and other heavy
appliances. When, he said he was shot at, the attackers were behind some of those boxes, that being the reason why
he could not see them until they started to flee.chanroblesvirtualawlibrary chanrobles virtual law library

This testimony can not be given credence. It is entirely inconsistent with defendant's statement to the chief of police
made soon after the killing and before he had time to reflect on the best manner to get himself out of his predicament.
To the chief of police he categorically admitted that he had shot Basa as latter was gathering firewood. The position
of Basas' wound tends to corroborate this statement and the ante-mortem declaration of the deceased, that the latter
was in a stooping picking firewood when he was hit.chanroblesvirtualawlibrary chanrobles virtual law library

We have no reason to distrust the veracity of the chief of police. He sustained no relation to the decedent and had no
motive to desire the defendant's punishment on fabricated evidence for a crime for which he was not criminally
responsible. The chief of police's testimony pitted against that of the defendant appears to be the more coherent,
more sensible and more trustworthy of the two.chanroblesvirtualawlibrary chanrobles virtual law library

The accused has given evidence of unreality for truth. He denied that any one ever questioned or tried to question
him in connection with the killing at bar. The fact is that Arcadio Salvo, an employee of the Surplus Property
Commission in Guiuan whose veracity is unquestioned swore that on December 1, he was acting as "desk man" at
the Investigation Section of the Surplus Property Commission; that the accused presented himself and reported the
incident; that he tried to get from the defendant refused to answer. Incidentally, this refusal was out of keeping with
the idea that there had been an exchange of fire and that the deceased had been hit accidentally in the process
either from the defendant's gun or from the looters.'chanrobles virtual law library

That the defendant, when he reported the killing, stated or at least gave to understand that he was the killer, is to be
inferred from the fact that according to his own testimony he was ordered lodged immediately in the guard-house "for
his protection."chanrobles virtual law library

There is another detail that belies the defendant's theory that two would-be looters fired several times against him
from behind the boxes and that he returned the fire. The accused admitted that he did not find any empty shells in the
compound nor any sign of any of the boxes having been hit by bullets.chanroblesvirtualawlibrary chanrobles virtual
law library

Justification for the killing is not claimed. The defendant himself, and that the time was ten o'clock in the morning. As
far as the evidence would show, the surplus property in the depot consisted of bulky and heavy boxes which one boy
could not and would not have dared carry away in the daytime with a guard or sentry
around.chanroblesvirtualawlibrary chanrobles virtual law library
However, we do not agree with the trial court that the crime committed was murder. The qualifying circumstance of
treachery can not logically be appreciated because the accused in such a manner as to insure the commission of the
crime or to make it impossible or hard for the person attacked to defend himself or retaliate. This circumstance can
only be applied, according to the tenor of article 13, sub-section 16 of the Revised Penal Code, when the culprit
employs means, method or forms of execution which tend directly and specially to insure the commission of the crime
and at the same time to eliminate or diminish the risk to his own person from a defense which the other party might
offer. In United States vs. Namit, 38 Phil., 926, it was held that the circumstance that an attack was sudden and
unexpected to the person assaulted did not constitute the element of alevosia necessary to raise a homicide to
murder, where it did not appear that the aggressor had consciously adopted a mode of attack intended to facilitate
the perpetration of the homicide without risk to himself. In the present case, the circumstance that an attack was
sudden and unexpected to the person assaulted did not constitute the element of alevosia necessary to raise a
homicide to murder, where it di not appear tht the aggressor had consciously adopted a mode of attack intended to
facilitate the perpetration of th homicide without risk to himself. In the present case, the circumstances negative the
hypothesis that the defendant reflected on the means, method and form of killing the ofended party. There was
absolultely nothing poersonal between the accused and Basas. He was, so he thought, erroneously, protecting the
property which he was detailed to watch by killing the stranger. His purpose was to kill, the decision was sudden, and
the position of the stranger was accidental and did not matter. In fact, in the nature of things, to give the other man an
opportunity to defend himself or to return the attack would have been a
contradiction.chanroblesvirtualawlibrary chanrobles virtual law library

In an analogoous case decided by the Supreme Court of Spain on April 3, 1888, and reported in vol. II, Viada, 5th
ed., pp. 171, 172, with Señor Viada's comment, the Court held that it was error to hold the killing as murder qualified
by treachery:

El que estando guardando una finca de la propiedad de su padre, al ver de noche subido a una higuera a un hombre
que estaba cogiendo brevas, le apunta con la escopeta y le dispara un tiro, infiriendole una lesion que le produce la
muerte, debera ser calificado de autor del delito de asesinato, o simplemente de homicidio? - La Audiencia de lo
criminal de Cartagena, aplicando la disposicion del art. 10, num. 2.o por la letra que mata, estimo lo primero; mas el
Tribunal Supremo, interpretandola por el espiritu que vivifica, declaro que no existia alevosia en el hecho expuesto.
Veasnse los notables fundamentos de su sentencia: "Considerando que es condicion esencial de la alevosia que
califica de asesinato la muerte violanet de alguna persona que los hechos que la determinen, ya preparados o ya
ejecutados sin anterior preparacion, sean libre expresion y resultado de pensamiento y proposito del culpable de
aprovehcar para el exito de su accion las ventajas que le ofrezca la situacion en que en el momento del delito se
halle, siguiera accidentalmente, respecto del ofendido, y que se encamienen con especial direccion a evitar al
primero el riesgo personal en que racionalmente pueda tener que le pondrian los actos de defensa con que el ultimo
tratra de rechazar la agresion: considerando que los terminos en que se describe la alevosia en el num. 2.o del art.
10 del Codigo Penal implican este concepto, puesto que requieren que los medios, modos y formas de ejecucion en
que consiste y por donde se revela tiendan directa y especialment, es decir, como resultado consciente de
determinacion de la voluntad, a la seguridad del exito intentado y a eludir a la vez probales o siguiera temidas
consecuencias de retorsion, por lo que no es aplicable al caso procesal, a causa de que el procesado, al disparar un
arma contra la persona para el entonces desconocida que vio en el arbol sustrayendo frutos que el guardaba, obro
no tanto con el deseo y la intencion de darle segura muerte sin riesgo propio, como por el de castigar, sin cuidarse
del resultado natural de su acto, la accion ilicita que en perjuicio de su padre se ralizaba a su propia vista por quien,
cualquiera que fuese, debia temer alguna consecuencia por ejecutar sigilosamento un hecho punible, etc."

We hold that the crime committed by the accused is simple homicide with the mitigating circumstance of voluntary
surrender and without any aggravating circumstance.chanroblesvirtualawlibrary chanrobles virtual law library

Wherefore, the judgment of the lower court will be modified so as to sentence the accused to an indeterminate
penalty of from 6 years and 1 day of prision mayor to 12 years and 1 day of reclusion temporal, with the accessories
of law, to pay the heirs of the deceased the sum of P6,000 as indemnity and to pay the costs. It is so
ordered.chanroblesvirtualawlibrary chanrobles virtual law library

_____

G.R. No. L-3090 January 9, 1951

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RICARDO LIMACO, defendant-appellant.

Menandro Quiogue for appellant.

Assistant Solicitor General Guillermo E. Torres and Solicitor Jose G. Bautista for appellee.

MONTEMAYOR, J.:

This is an appeal to suspend the decision of conviction for the crime of triple murder sentencing the accused-
appellant Ricardo Limaco to "life imprisonment at hard labor, without hope of any pardon or reprieve whatsoever, to
indemnify the heirs of the deceased Severa Envelino, Sofia Envelino and Matrina Amores in the sum of P6,000 each
(People vs. Amansec, G.R. No. L-927, March 11, 1948)*, without subsidiary imprisonment in case of insolvency, and
to pay the costs."

After a review of the record of the case, we find the following facts to have been fully established. On June 30, 1948,
Liberato Envelino, his wife and son left their house in Sitio Bunlas, Kabankalan, Negros Occidental, to work on their
clearing or kaingin several kilometers away. In the house were left his three daughters — Inacia, Severa, and Sofia,
all surnamed Envelino and a niece Martina Amores, aged 15, 14, 5 and 3 respectively. According to the eldest
daughter, Inacia, at about 4 o'clock in the afternoon, appellant Ricardo Limaco came to the house and found the four
girls in the kitchen. He asked her sister Severa to sell him a pig which he wanted to butcher. Severa told him that he
better wait for her parents because she would not dare sell the animal in their absence and without their consent.
Visibly disappointed and resenting her refusal to sell, he addressed Severa thus: "If you do not want to, it is better
that you will be hacked because you are selfish." Almost simultaneously, he drew his bolo, Exhibit A, locally known as
"talibong", from its sheath, Exhibit A-1 and attacked Severa with it, inflicting on her seven wounds, two of which were
mortal; Sofia and Martina rushed to Severa and embraced her, but Ricardo in his fury also boloed them, inflicting on
each four wounds, two of which were mortal. The three girls died on the spot.

In the meantime, Inacia who witnessed the horrible slaughter drew back in terror, and fearing that her turn would
come next, jumped down from the kitchen through an opening in the wall and hid herself in the bushes. After an hour
and thinking that the accused had left, she ventured into the house and found the dead bodies of her two sisters and
niece, sprawled on the very spot in the kitchen where she last saw them, covered with wounds. Later, in the evening
her parents and brother arrived and she related the gory details.

The authorities in Kabankalan were finally notified and the chief of police and one policeman and the president of the
Sanitary Division went to the place and made the corresponding investigation. The accused was arrested by two
policemen in his home in sitio Nabhang, municipality of Ayungon, and according to the policemen he admitted to
them having killed the three girls, even surrendering the bolo, Exhibit A, with which he boloed them, with its
corresponding scabbard, Exhibit A-1.

During this detention in the municipal jail in Kabankalan, he made a written statement, Exhibit B, with its
corresponding translation (Exhibit B-1) which was sworn to and subscribed by him before Justice of the Peace
Garaygay on July 10, 1948. In this affidavit, the appellant states that early in the morning of June 30, 1948, he and
his father Rufo Limaco and his step-mother went to sitio Carul-an, Ayungon, to make some purchases at the market
there; that at about 8 o'clock that same morning, his father and stepmother returned to their home in sitio Nabhang
but he remained and went to the cockpit; that in the afternoon he started for his home but passed by the house of
Liberato Envelino in sitio Bunlas in order to ask him to catch a carabao of his father for he (defendant) intended to
pasture it around his house to get rid of the tall grass growing there; that Liberato was employed by his father Rufo
Limaco as a herder or caretaker of their carabaos; that upon reaching the house of Liberato he found the four girls
already mentioned and inquired for Liberato, saying that he wanted him to catch one of his father's carabaos but that
instead of giving a civil answer, Severa answered in anger. We quote a pertinent portion of Exhibit B-1:

"Why, what is the meaning of asking where my father is; you are not giving us food for dinner or supper." I
answered, "Not of course, but I have something to do with your father, to have him catch one of our
carabaos." Then she answered me again saying, "Catch the carabao, none of your business to order us to
catch your carabao, I will throw you with this piece of wood." Later on while we were exchanging hot words,
she threw me with a piece of wood, but I parried it with my hand.
 Q. After Severa Envelino had thrown you with a piece of wood, what did you do? — A. Because I got mad at
her for the pain I felt in my hand, I forgot everything and pulled out my "talibong" I had with me that time, and
hacked Severa Envelino unconsciously, and later, I happened to include the two children who were her
sister and niece, mentioned above, because they were hugging Severa Envelino at the time I was stabbing
her and as a result of that three of them died inside the house in sitio Bunlas, Kabankalan, Negros
Occidental, on that time and date.

Q. After killing the three of them, what did you do then? — A. I went home immediately to Nabhang, Oriental
Negros where my father live and I did not tell anybody in the house what happened to me; and they came to
know the incident on Monday of July 5, 1948 when I was arrested by the policemen from Kabankalan.

Q. Where were the wounds in the bodies of Severa Envelino and the children whom you killed? — A. I do
not know, I was not able to find out where, because I kept on hacking them and when all of them were dead
I went down the house.

Q. Who were the persons present there at the time you killed Severa Envelino and the other children? — A.
There was no other person present, only the four of them, whom I have mentioned above. I was not able to
stab Inacia Envelino, their elder sister because at the time I was hacking her sister she jumped out of the
kitchen and hid among the bushes..

Q. Where is your "talibong" which you used in killing Severa Envelino and the two children? — A. It was now
in the possession of the Chief of Police of Kabankalan, Negros Occidental, because it was taken by the
policemen from our house when they arrested me on July 4, 1948.

In a confidential report prepared by the Chief of Police of Kabankalan for the Provincial Commander of Occidental
Negros, dated July 15, 1948 (Exhibit H), the chief of police stated that appellant Ricardo Limaco admitted to him that
he had killed Severa, Sofia and Martina on June 30, 1948, and practically repeated the details about the killing and
the reason therefor as contained in the affidavit (Exhibit B-1). The chief of police also states in his report that he had
examined appellant's father, Rufo Limaco, who told him that when Ricardo came home that day, June 30, 1948, he
brought with him the meat of a rooster killed in the cockpit but was surprised to see blood smeared on his clothes and
on the handle of his bolo or "talibong", and when he asked him about the blood stains Ricardo informed him that in
cutting up the rooster while it was still alive it struggled and its blood spurted on him and stained his shirt and his bolo.

We are fully satisfied that the appellant killed the three girls in the manner already described at the beginning of this
decision. We are not impressed by the claim of the accused that he was ill-treated by the police in order to obtain
from him his written statement, Exhibit B, and that he signed the same before the justice of the peace without
knowing its contents. The alleged ill-treatment was denied by the police, and the justice of the peace on the witness
stand told the court that he saw no marks of ill-treatment or torture on the body of the accused who signed the
statement after the contents had been fully explained to him. But even without this affidavit, Exhibit B, we find the
testimony of Inacia Envelino to be straightforward and sincere and sufficient on which to base the conviction of the
appellant.

At the trial, the appellant interposed the defense of alibi claiming that he could not have committed the crime in the
sitio of Bunlas in the afternoon of June 30, 1948, because he never left his house in his barrio of Nabhang from the
morning of that day until the day following. In this he was corroborated by his friend Ciriaco Batollo and his father
Rufo Limaco. After analyzing the evidence for the accused on this point, and citing several authorities, the lower court
rejected this defense, stating that Batollo was an interested witness "due to the bond of friendship existing between
himself on one hand and the accused and his father on the other, or that he was a paid or fabricated witness who
manufactured untold lies before the court." As to the father Rufo Limaco, the trial court said that his testimony of trial
supporting his son's defense of alibi is belied by his testimony given at the preliminary investigation and by his
affidavit, Exhibit I. We agree to the trial court's rejection of this defense of alibi. As a matter of fact, appellant's
counsel abandoned this defense of alibi in his brief. Neither does he deny that the appellant is the author of the
killing. He merely asks that the sentence be suspended and that his client be committed to the Psychopathic Hospital
for mental observation.

In our opinion, and considering was has transpired between the commission of the crime and the end of the trial,
there is no reason for granting this request. In other words, there is no reason to believe that the appellant is now
insane or did not have the use of his reason at the time he committed the crime. There is no evidence that in all his
life he ever had attacks of insanity, lunacy, or epilepsy that should have deprived him of reason and discernment,
even momentarily. On the contrary, he seems to be normal in every respect. We quote from the decision of the trial
judge who had the opportunity to serve him on the witness stand:

The Court had seen the defendant testify on his own behalf; if had observed his stern look from his pair of
cold terrifying eyes. Cold and dry in his demeanor and answering in counsel's questions intelligently, the
defendant impressed the Court as a man who was not insane at the time when he mercilessly hacked to
death his three young victims, but was simply a plain blood-thirsty looking man in his early twenties.

The trial court found the accused guilty of murder. That is correct. Attacking three weak and defenseless girls, two of
them only five and three years old, suddenly and with a deadly weapon like a bolo, against which unexpected assault
they could not defend themselves, clearly constitutes treachery which qualifies the killing and raises it to the category
of murder. The trial court further found present the aggravating circumstances of abuse of superior strength,
disregard of respect due to sex and age, and that the crime was committed in the dwelling of the victims. The finding
of the aggravating circumstance of dwelling is also correct; not so however, with abuse of superior strength and
disregard of respect due to sex and age. Said two circumstances may be regarded as included in that of treachery.
On this point the Supreme Court in the case of People vs. Mangsant, 65 Phil., 548, citing Viada, says the following:

. . . The aggravating circumstance of disregard to sex cannot be considered because it has neither been
proved nor admitted by the defendant that in committing the crime he had intended to offend or insult the
sex of the victim. Viada, in his commentaries on the Penal Code, Volume I, page 329, says: "Question III. In
the murder of a girl of 14 years, qualified as such by treachery, is it proper to consider the aggravating
circumstance of disregard of respect due the offended party on account of her age?" The Supreme Court
has resolved the same in the negative, saying: "Considering that the trial court did not err in not considering
against the accused the 20th aggravating circumstance of article 10, because nothing appears in the
judgement from which it may be presumed that in the commission of the crime, the accused deliberately
intended to offend or insult the sex or age of the offended party, but only to execute his evil purpose in a
treacherous manner, taking advantage of the weakness of her sex and the tenderness of her age in order to
perpetrate the same without risk to his person, etc." (Decision of June 25, 1878, published in the Gazette of
August 25th.) Neither may the aggravating circumstance of abuse of superior strength be taken into account
just because of the fact that the defendant is a man and the deceased a woman, inasmuch as this
circumstance is inherent in the crime committed and his moreover absorbed by he treachery which, in this
case, qualifies the crime as murder.

There therefore remains only one aggravating circumstance, namely, that of dwelling.

We notice that the trial court imposed only one penalty for the three murders. In this, the trial court erred. There
should be a penalty for each of the three separate crimes caused by separate acts or blows committed and inflicted
by the appellant.

The trial judge severely condemns the act committed by the appellant, calling it hideous and gruesome, committed, in
the opinion of the court, either by an insane or by a blood-thirsty criminal, and regards the defendant as plain blood-
thirsty, unfit to live in normal and peaceful society, and goes on to say that if said defendant had three lives, he could
legally be deprived of each and every one of them, and that the trial court could send him to the electric chair without
any compunction of conscience. But strange to say, the trial judge states, and we quote:

But a quick death would seem to be too sweet a medicine for him. He does not deserve it. He should be put
to death slowly but surely and, in the opinion of the court, life imprisonment at hard labor, without hope
whatsoever of any pardon or reprieve, is just the right punishment for him.

Further, the trial judge indulges in unfavorable comments on the death penalty.

We always respect the private opinions of trial judges tho highly debatable and even if they happen not to harmonize
with ours on the subject. But when such private opinions not only form part of their decision but constitute a decisive
factor in arriving at a conclusion and determination of a case or he penalty imposed, resulting in an illegality and
reversible error, then we are constrained to state our opinion, not only to correct the error but for the guidance of the
courts. We have no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the
death penalty. Today there are quite a number of people who honestly believe that the supreme penalty is either
morally wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as
our criminal law provides for is imposition in certain cases, it is a duty of judicial officers to respect and apply the law
regardless of their private opinions. It is a well settled rule that the courts are not concerned with the wisdom, efficacy
or morality of laws. That question falls exclusively within the province of the Legislature which enacts them and the
Chief Executive who approves or vetoes them. The only function of he judiciary is to interpret the laws and, if not in
disharmony with the Constitution, to apply them. And for the guidance of the members of the judiciary we feel it
incumbent upon us to state while they as citizens or as judges may regard a certain law as harsh, unwise or morally
wrong, and may recommend to the authority or department concerned, its amendment, modification or repeal, still, as
long as said law is in force, they must apply it effect as decreed by the law-making body.

The crime committed in this case is truly shocking. Three innocent girls, two of tender age, apparently without any
provocation, were butchered and hacked to death. While some members of this Court are for imposing the extreme
penalty, others believe that the appellant is entitled to a mitigating circumstance, either that he, a relatively ignorant
man interpreted the refusal of one of the victims to sell a pig as an affront and thereby became obfuscated and lost
his head, or that he lacks education and instruction for the reason that he did not finish even the first grade in
elementary school. In that case, this mitigating circumstance will compensate the aggravating circumstance of
dwelling, thereby resulting in the imposition of the penalty in its medium degree. For lack of sufficient votes, the
penalty will be reclusion perpetua. But this penalty is for each of three murders, it being understood that the maximum
period of imprisonment will not exceed forty years. With this modification, the decision appealed from, is hereby
affirmed with costs.

Moran, C. J., Paras, Feria, Pablo, Bengzon, Padilla, Tuason, Reyes and Jugo, JJ., concur.

_____

[ G. R. No. 38046, September 24, 1932 ]

EUSTAQUIO LAGRIMAS, PETITIONER, VS. THE DIRECTOR OF

PRISONS, RESPONDENT.

DECISION

VILLAMOR, J.:
The petitioner, who is detained in Bilibid, prays that an order be issued directing that he be
set at liberty, invoking article 149 of the Revised Penal Code, which prescribes a lesser
penalty for the crime penalized tjy article 251 of the old Penal Code under which he was
sentenced by the Court of First Instance of Samar to two years, eleven months, and eleven
days of prision correctional and a fine of 375 pesetas.
The respondent opposes the petition maintaining that article 148 and not
149 of the Revised Penal Code is applicable to the present case.
The record shows that the petitioner slapped and used offensive language
to Mamerta Alcazar, a teacher in the public school of the town of Laoang,
Samar, while she was performing her official duties. The accused was found
guilty of the crime of assault upon a public official as charged, and
sentenced according to article 251 of the old Penal Code, to the penalty
aforementioned.
It may be noted that in the brief filed against the petitioner in G. R. No.
33529,[1] the Attorney-General contended that the crime committed was
penalized by article 250, No. % of the old Penal Code, with a penalty
ranging from six years and one day of prision correctional to eight years of
prision mayor, and the court said that this contention was technically
correct. But in view of the fact that the accused was actuated by passion and
obfuscation, the court affirmed the judgment appealed from.
According to the old Penal Code, article 249, the offense of assault is
committed by: "1. * * *; 2. Any person who shall attack, employ force
against, or seriously resist or intimidate, any person in authority, or the
agents of such person, while engaged in the performance of official duties,
or by reason of such performance."
The penalties for such assaults are given in articles 250 and 251 of the Code.
Similarly, the Revised Penal Code penalizes two kinds of assault, direct and
indirect, in articles 148 and 149.
For a better understanding of the matter, we deem it wise to place the old
and the new provision side by side:

Old Penal Code Revised Penal Code

"ART. 250. The penalty for "ART. 148. Direct assaults.-Any

assaults falling within the next person or persons who, without a
preceding article shall be prision public uprising, shall employ force or
correccional in its medium degree intimidation for the attainment of
to prision mayor in its minimum any of the purposes enumerated in
degree and a finr of not less than defining the crimes of rebellion and
six hundred and twenty-five and sedition, or shall attack, employ force
not more than six thousand two or seriously intimidate or resist any
hundred and fifty pesetas, when person in authority or any of his
the offense is committed under agents, while engaged in the
any of the following performance of official duties, or on
circumstances: occasion of such performance, shall
"1. When the person committing suffer the penalty of prision
the assault displays a weapon. correccional in its medium and
maximum periods and a fine not
"2. When the person committing
exceeding 1,000 pesos, when the
the assault is a government
assault is committed with a weapon
employee.
or when the offender is a public
"3. When the offenders lay hands officer or employee, or when the
upon any person in authority. offender lays hands upon a person in
"4. When, in consequence of authority. If none of these
 coercion, the person in authority circumstances be present the penalty
has acceded to the demands of of prision correccional in its
the offenders. minimum period and a fine not
"If no one of these circumstances exceeding 500 pesos shall be
be present, the penalty shall be imposed.
prision correccional in its
minimum and medium degrees
and a fine of not less than three
hundred and seventy-five and not
more than three thousand seven
hundred and fifty pesetas.
ART. 251. Offenders who shall
made use of force of intimidation,
"ART 149. Indirect assaults.-The
as referred to in paragraph one of
penalty of prision correccional in its
article two hundred and forty-
minimum and medium periods and a
nine, for the purposes therein
fine not exceeding 500 pesos shall be
mentioned, shall suffer the
imposed upon any person who shall
maximum degree of the penalty
make use of force or intimidation
prescribed by the last paragraph
upon any person coming to the aid of
of the next preceding article, if
the authorities or their agents on
they shall have laid hands upon
occasion of the commission of any of
any person or persons who shall
the crimes defined in the next
have come to the aid of the
preceding article."
authorities or upon their agents,
or upon any public officer."
A comparative reading of the provisions above quoted will show that
articles 250 and 148 refer to assaults upon a person in authority or his
agents, and both articles are concerned with two cases. The circumstances
determining the first case are the same, with the exception of No. 4, article
250, which is not reproduced in article 148. These articles differ with
respect to the penalties in the first and the second case. The first case
contemplated in article 250 is penalized with prision correccional in the
medium degree to prision mayor in the minimum degree in addition to the
fine prescribed by the law; whereas the first case of article 148 is only
penalized with prision correccional in the medium and maximum degrees,
and a fine. These two articles
also differ in regard to the second case, for, while article 250 imposes the
penalty of prision correctional in the minimum and medium degrees, and a
fine, article 148 only provides prision correctional in the minimum degree
and a fine.
As for articles 251 and 149 it may be stated that they refer to those guilty of
laying hands upon any person coming to the aid of the authorities, with the
difference that article 251 also penalizes those who lay hands upon agents
of the authorities or upon public officials, and article 149 does not. These
two articles also differ with reference to the penalty, for while article 251
imposes the maximum of the penalty ranging from the minimum to the
medium degree of prision correctional, and a fine, article 149 only imposes
prision correctional in the minimum and medium degrees, and a fine.
As stated above, counsel for the respondent contends that the law
applicable to the case is article 148 and not 149 of the Revised Penal Code,
averring in his answer that the petitioner was charged with the crime of
assault upon a person in authority, and sentenced to two years, eleven
months and eleven days, and a fine of 375 pesetas, which is the minimum of
the maximum degree of the penalty prescribed in No. 2 of article 250 of the
old Penal Code.
It is noted, however, that the sentence of the trial court, affirmed by this
court, expressly held that the crime charged is that penalized by article 251
of the Penal Code, to wit, laying hands upon persons coming to the aid of
the authorities or their agents or upon public officials, an offense punished
with the penalty fixed by No. 2 of article 250, in the maximum degree, that
is two years, eleven months, and eleven days of prision correctional and a
fine of 375 pesetas, equivalent to P75. And as heretofore stated, article 251
is concordant to article 149, with the difference that the latter contains no
penal sanction for the offense of laying hands upon agents of the authorities
or upon public officials.
This conclusion relieves us of the necessity of discussing in this case
whether a public-school teacher, like Alcazar whom the accused assaulted,
is or is not an agent of the authorities or a public official; and the remaining
question is whether the petitioner, who was sentenced by virtue of a
provision of the former Penal Code, may be set at iibprty on the ground that
the Revised Penal Code provides no penalty for the crime committed under
the former Code.
Article 366 of the Revised Penal Code provides: "Without prejudice to the
provisions contained in article 22 of this Code, felonies and misdemeanors,
committed prior to the date of effectiveness of this Code shall be punished
in accordance with the Code or Acts in force at the time of their
commission." We understand that the intention of the Legislature in
embodying this provision in the Revised Penal Code was to insure that the
elimination from this Code of certain crimes penalized by former acts
before the enforcement of this Code should not have the effect of pardoning
guilty persons who were serving their sentences for the commission of such
crimes. By virtue of this provision, we are clearly of the opinion that the
petitioner must serve out the penalty imposed upon him, unless he be
pardoned by the Executive Power.
Petition denied, with costs de officio. So ordered.