G.R. No. 1532. February 23, 1904

On July 1, 1903, the deputy provincial fiscal of the Island of Cebu filed an
information in the Court of First Instance of that province, amending a former
information, accusing Casimiro Gasal of the crime of homicide, in that on the
16th of May, 1903, between 9 and 10 o’clock at night, in the place called Nangca
of the town of Consolacion, without justification therefor, he threw stones at
Andres Tiro, striking him in the forehead and felling him to the ground, after
which Gasal threw another stone which struck Andres in the region of the left
ear, causing his death then and there in consequence of the injuries so
inflicted, contrary to the statute in such case made and provided.

The court, finding that the crime had been committed and that the defendant
was guilty thereof, with certain mitigating and aggravating circumstances
enumerated in the decision, sentenced the defendant to the penalty of twelve
years and one day of reclusion temporal at hard labor, with the
accessories mentioned in article 61 of the Penal Code, to pay an indemnity of
1,000 Mexican pesos to the heirs of the deceased, and to pay the costs, and in
case of insolvency to subsidiary imprisonment in accordance with the provisions
of article 50 of the said code.

The evidence in this case shows that one day in the month of May, 1903, on or
about the 16th of the month, about 9 p. m., while several men were gambling in a
field in the place called Nangca, in the municipality of Consolacion, Island of
Cebu, two of their number, Pio Limabug and Bernardo Vacunador, got into a
quarrel; that upon this the game stopped, there was a disturbance, and some of
the players left the gambling place; that upon this Andres Tiro demanded of
Casimiro Gasal the payment of four pennies which he had won from the latter in
the game, and Gasal, becoming enraged, blew out the candle, picked up a stone,
and threw it at Andres, striking him on the forehead and felling him to the
ground; that Andres sat up and was in the act of rising when Gasal threw another
stone at him at close range, striking Andres above the ear;that Andres fell to
the ground unconscious, whereupon the assailant walked away; that Eleno Herrera
and Felix Tiro, who witnessed the assault, then picked up the wounded man and
took him to his house, where he died three days later without having regained
consciousness.

Besides the two witnesses above cited, the occurrence was also witnessed by
Pio Limabug and Bernardo Vacunador, who testified to the facts above related,
stating that the assault was committed in an open field; that the moon was
shining at the time; that before the assault Casimiro Gasal blew out the sperm
candle which he held. Limabug testified that when Andres was hit by the first
stone he turned around and fell to the ground. The witness Vacunador did not see
that Limabug, with whom he was quarreling, carried a dagger. Three witnesses
testified that while they were all confined in the municipal building, during
the preliminary investigation, the defendant, Gasal, entreated them not to say
that he had been the one who threw the stones at; the deceased; that the witness
Herrera, a relative of the defendant, replied that he would have to testify
against him because he would have to tell the truth.

It is plainly proven that Andres Tiro suffered a violent death as a
consequence of two stones thrown at him on the night in question in a place
where a number of people had been gambling. This fact constitutes the crime of
homicide, comprised in article 404 of the Penal Code, none of the qualifying
circumstances enumerated in article 403, which defines the crime of murder,
having been present in the commission of the offense.

Notwithstanding the fact that the defendant pleaded not guilty to the crime
charged, with all the proof is sufficient to show his guilt as the sole author
by direct participation and to convict him of the crime of assaulting the
deceased by stoning him, as a result of which he was so seriously injured that
he was unconscious from that time until his death, which took place on the third
day. It follows, therefore, that the defendant is guilty of the crime of
homicide.

The denials and exculpatory allegations of the accused, as well as the
testimony of the witnesses for the defense, are insufficient to overcome the
result of the evidence of the prosecution against him. It has not been shown
that anyone else was the slayer of the deceased, or that Gasal left the scene of
the occurrence before the assault was committed. It may be true that the
defendant was found in his house that night, and that Dionisio Maglasan saw him
running behind him, but it must have been after he wounded the deceased at the
scene of the occurrence. If in addition to this we take into consideration the
contradictory statements of the accused as well as those in the testimony of the
witnesses Marcelina Tolo and Matea Gasal, and that inspite of their testimony
and that of the witness Maglasan, the four witnesses for the prosecution denied
that a shower of stones had fallen on the players, the guilt of the defendant as
author of this crime of homicide cannot be doubted.

In the commission of this crime the only mitigating circumstance to be
considered is that established in paragraph 6, article. 9 of the code, it having
been proven by the testimony of the witnesses that the defendant Gasal was drunk
that night, for which reason he must have attacked the deceased while in an
intoxicated condition, and in the absence of proof to the contrary it must be
presumed that that vice was not habitual with him.

The aggravating circumstances of paragraphs 6 and 20 of article 10 of the
code, and the mitigating circumstances of paragraphs 3 and 8 of article 9 of the
same, applied in the sentence appealed from must be rejected, inasmuch as the
insistent and repeated assault made upon so light a provocation shows that it
was the defendant’s fixed purpose to kill the deceased. The confusion and
tumult, if any—and as to this there is no proof-do not constitute a
circumstance analogous to the others of the same section. The fact that a second
stone was thrown at the “deceased just as he attempted to get up does not show
that an attempt was made to augment unnecessarily the injuries, already
inflicted upon the deceased, but rather determination of the assailant to kill
his adversary. The ages of both the accused and the deceased being approximately
the same, it does not appear that the accused, Gasal, failed to regard the
respect due Tiro on account of his age, or that the accused abused the advantage
of youth and strength over the debility of an old man. Consequently, there being
only one mitigating circumstance and no aggravating circumstances, the penalty
imposed by the court below is in conformity with the law.

For the reasons stated, with the elimination of the condemnation to hard
labor and the subsidiary penalties imposed by the decision of the court below,
and the addition of the accessories enumerated in article 59 of the code, we are
of the opinion that the decision of the trial judge, by which Casimiro Gasal is
condemned to twelve years and one day of reclusion temporal must be
affirmed, with the costs of this instance against the appellant Judgment will be
entered accordingly and the case remanded for its execution, with a certified
copy of this opinion.

Arellano, C. J., Cooper, Willard, Mapa, McDonough, and Johnson,
JJ., concur.