G.R. No. 1504. April 08, 1905

On July 31, 1903, Robert L. Highfill was charged by the provincial
fiscal of Misamis with the crime of murder for having shot, with a
revolver, one Frank Moyer, with premeditation and treachery.

The case came on for trial and the trial judge qualified the case as
that of homicide and sentenced the accused to twelve years and one day
of reclusion temporal, without the payment of indemnity. From this sentence the accused appealed.

On the trial it was clearly shown that on the night of July 1,1903,
at about 7 o’clock, while some cavalry soldiers were in a house of
women of bad repute in the Province of Iligan, the soldiers being Lewis
Marshall, Peter Seder, Blacksmith Hease, Frank Moyer, one Price, and
two civilians, the names of the women being unknown, said Robert L.
Highfill came there in company with William T. Larrabee and one Told,
apparently having been invited there by the soldier named Price.
Highfill and his companions immediately took part in the dancing which
was going,, on in said house, notwithstanding the protest made by the
owner of the house, which protest was to the effect that the newcomers
should cease dancing. The accused and his two companions paid no
attention to this and continued to dance with much noise, shaking the
house, for which reason the deceased, Moyer, ordered them, in the name
of the owner, to stop dancing and to leave the house, which they did.
After fifteen or twenty minutes the accused and his two companions
returned and attempted to go upstairs again, but were seen by the
deceased, who told them that they were not wanted in the house and that
the dance was given for the cavalry soldiers and some civilians and for
them to not cause any trouble, to which statement the accused replied
that if Moyer was a man, let him come downstairs; whereupon Marshall
said to the accused that if he was looking for trouble he should go to
some other place. The accused and his companions left, but the accused
intimated that he would return, and then William Larrabee seized the
accused by the arm and took him with him. Later on, as a result of a
quarrel between Marshall and one Bowen (whom the former struck with his
fist), Marshall, Moyer, Seder, and Hease left the house and upon
arriving in the street they found the accused, Highfill, waiting, at
which moment Moyer saw said Highfill approaching him and said, “Who in
the hell are you?” They immediately started to fight and those present
could not be sure which one of the two struck the first blow in
starting the fight; still they observed that the accused went off
running, though somewhat hesitatingly, and the deceased pursuing him.
At this moment a shot from a revolver was heard and the companions ran
toward their quarters.

It was developed from the investigations made and from the details
in the case that Robert L. Highfill, in the fight with Frank Moyer,
fired a shot from a revolver at said Moyer, which revolver he had taken
from the barracks where it was deposited. The revolver was spotted with
blood, as well as the hat worn by the accused, both of these articles
being found by one of the guards (named Botts) at the barracks in the
place where the fight occurred, the hammer of the revolver being
pressed against an empty cartridge shell. Sergeant Frank Sinclair
identified the revolver as one taken from him by the accused at the
barracks, the accused being the owner of the same. Thomas Feeley,
another of the eyewitnesses to the fight, affirms that the deceased
struck the accused and the latter stepped back a few steps and fired a
shot from a revolver at deceased.

According to the medical examination made by R. J. Gibson, the body
of the deceased showed a wound which had been caused by a shot from a
firearm, which wound was located on the left side of the chest, through
which the bullet entered, between the second intercostal region and the
sternum, which severed the aorta, producing hemorrhage and causing the
death of the injured party.

A piece of brick, wrapped in a handkerchief, was found in one of the
pants pockets of the deceased and there was a wound on the head of the
accused, evidently caused from a blow with a piece of brick. According
to the witness William T. Larrabee, he had gone to several places with
the accused and one named Told; that they went into an American bar,
where they heard a noise in the house where the dancing was going on,
whereupon the accused, Highfill, went over to said house to ascertain
what had happened and that he, the witness, then heard the noise of
blows, which was followed by the sound of a shot.

As will be seen from the above statement of facts, it is fully
proven that the soldier Prank Moyer lost his life through violence,
which fixes the crime as that of homicide, in the execution of which
none of the qualifying circumstances enumerated in article 403 of the
Penal Code were present, on account of the occurrences and trouble
which preceded the fight between the parties; that during the fight the
participants were facing each other and in the middle of the street,
and as the death of one of them resulted from the fight, the same being
caused by a shot from a revolver, and from the circumstances in the
case, the crime only deserves the qualification of homicide contained
in article 404 of the Penal Code.

In the crime aforesaid the accused, Highfill, was the principal by
direct participation and is guilty beyond a reasonable doubt. The
testimony of the several eyewitnesses to the fight which occurred
between the accused and the deceased, together with the other facts
proven and related one to the other, as appears in the record, clearly
lead to the conclusion that the accused, Robert L. Highfill, is
principal in the violent death of the unfortunate Frank Moyer. The fact
appears that Moyer, at the request of the owner of the house, put the
accused and his companions out of same on account of the disturbance
raised by them, they being in a drunken condition; this act caused
Highfill to feel resentful; that when they again tried to go upstairs
and were opposed by Moyer and his companions, Highfill challenged said
Moyer and asked him to come downstairs, and upon leaving, said that he
would return; that some time afterwards when the deceased, Moyer, and
his companions left the house, they met the accused in the street and
the latter ran up to Moyer, a light ensued between them in which
Highfill received a blow on the head with a piece of brick, and Moyer
was killed as the result of a shot from a revolver with which the
aggressor was provided; that in fact the accused had taken the revolver
from Sergeant Sinclair at the quarters some hours previous to the
occurrence, and, finally, that said revolver was stained with blood and
found in the place where the fight occurred and near the body of the
deceased, which revolver is identified by the accused, as well as the
hat which the accused was wearing on that night; all these facts go to
show conclusivel—taken in conjunction with the other facts—the guilt of
the accused as the author of said homicide.

In the commission of this crime there exists only the one mitigating
circumstance contained in paragraph 6 of article 9 of the Penal Code,
viz, the accused was drunk on the night of this occurrence, and nothing
appears to show that drunkenness was habitual with him or that he
became drunk after he had conceived the commission of the crime. No
aggravating circumstance appears to counterbalance the effect of this
mitigating circumstance.

It is not proper to consider, as urged by the defense, in favor of
the accused the exempting circumstance of self defense as defined in
article 8, paragraph 4, of the same code, on account of the absence of
the three requisites of unlawful aggression on the part of the
deceased, the reasonable necessity for using the means employed to
oppose or repel said attack, and lack of sufficient provocation on the
part of the accused.

The facts above set forth, those which preceded the occurrence, and
the conduct of the accused, who, after challenging the deceased and
asking him to come downstairs, waited for him in the street, armed with
a revolver which he had previously taken from the quarters where it was
kept, and, when he saw the deceased coming, approached the latter and a
fight ensued, all clearly show in a manner beyond any doubt that the
accused purposely sought a fight and provoked it long before and
repeatedly, and instead of being the aggrieved party he was the
aggressor and as such made use of a deadly weapon against the deceased,
who was helpless, notwithstanding he was provided with a piece of
brick, and therefore, as principal in the crime of homicide, wherein
existed one mitigating circumstance, he is guilty accordingly and has
incurred the minimum penalty for the crime.

By virtue, therefore, of the considerations above set forth, it is
our opinion that the judgment appealed from should be affirmed and the
accused is also sentenced to the accessory penalties set forth in
article 59 of the Penal Code, to the indemnification of P1,000 to the
heirs of the deceased, and to the costs in both instances. This case to
be remanded to the court below with a certified copy of this decision
and of the judgment which shall be rendered in accordance herewith. So
ordered.

Arellano, C. J., Mapa, Johnson, and Carson, JJ., concur.