G.R. No. 2229. July 01, 1905

The defendant, McMann, and one McKay were packers at Camp Vicars in
Mindanao, employed by the Quarter-master’s Department of the Army. On
the day in question the defendant had charge of some mules about one
and one half miles from the camp. McKay was not on guard at the time,
but, for some reason which does not appear, was near the place where
the defendant was stationed with the mules. McKay went to the house of
a Moro, Amay Pindolonan, for the purpose of getting matches with which
to light his cigar. With his revolver in his hand he attempted to enter
the house, but the owner would not allow him to do so. A few moments
later the defendant arrived at the same house. He attempted to enter,
but was unable to do so on account of the opposition of the owner. He
also carried his revolver in his hand with the hammer raised ready to
be discharged. A Moro named Master, who was there at the time, was
carving the head of a bolo with one hand, holding the blade in the
other. The defendant snatched the bolo from him, cutting his fingers.
This Moro left for the camp to report the matter to the authorities.
Soon after this McKay and the Moro Pindolonan, being seated side by
side at a distance of from 3 to 6 feet from the defendant, who was
either standing or sitting on the stairway which led into the house,
the latter raised his pistol and fired at McKay. The bullet struck him
in the back of the head and killed him instantly. The Moro at once
jumped up, looked around to see where the shot came from, and started
to run, whereupon the defendant shot him. The exact nature of his
injuries does not appear, but it appears that at the time of the trial,
about a month after the event, he was still in the hospital. At some
time, probably after the killing of McKay, although the defendant says
it was before, the latter killed a dog which was on the premises. The
defendant and McKay were both drunk at this time.

That the defendant fired the shot which killed McKay is practically
admitted by him in his testimony and the fact is also proved by three
or four eyewitnesses. It is claimed by his counsel in this court that
the shooting was accidental arid that he had no intention of killing
McKay. In the face of tne positive testimony of the witnesses there is
no ground for saying that the shooting was accidental. Two of the Moros
testified that they saw him discharge his revolver at McKay. In view of
the fact that McKay and the Moro were sitting side by side, it may
perhaps have been difficult for the witnesses to have known at which
one of the two the defendant aimed, but their testimony makes it plain
that in no event was the discharge of the revolver accidental.

As to the second claim of the defendant that he had no intention of
killing McKay, the only evidence in support of it is the proof that the
defendant and McKay were good friends prior to the occurrence and that
no reason is shown why he should have committed such an act. It may be
difficult to state what the exact cause was. It appears from the
testimony that while they were in the position above stated the
defendant was talking to McKay, but McKay said nothing in reply. The
cause for the commission of the crime might be found perhaps in this
conversation, if we knew what it was. Or perhaps the defendant killed
McKay because he, the defendant, was drunk. But whatever the cause may
have been it is not absolutely necessary for us to find a motive
therefor. The question of motive is of course very important in cases
where there is doubt as to whether the defendant is or is not the
person who committed the act, but in this case, where it is proved
beyond all doubt that the defendant was the one who caused the death of
McKay, it is not so important to know the exact reason for the deed.

The defendant also claims that the court below erred in holding that the crime was committed with alevosia.
The judge below based his holding upon the fact that McKay was shot
from behind. The authorities cited by the de- fendant from the supreme
court of Spain may be divided into two classes. One class includes
cases in which the evidence did not show by eyewitnesses the exact way
in which the crime was committed. The court held that under these
circumstances alevosia could not be presumed from the
condition in which the body was found or from proof that the shot must
have come from behind. These cases have no application to the case at
bar, for here the proof shows exactly how the offense was committed.
The second class of cases includes those in which, after a struggle has
commenced between the parties on one side and on the other, and after
each side is notified of the intention of the other side to do them
injury, a member of one party is killed by a member from the other by a
blow from behind. These cases have no application to the case at bar,
for here before any struggle between McKay and McMann had commenced, or
before there was any indication, so far as the evidence goes, of any
trouble between them, and without any warning, the defendant shot McKay
in the back of the head.

We do not understand that the defendant claims that he intended to
shoot the Moro when he killed McKay, but even if this claim were made
and supported, we do not see how it could change the result in view of
the fact that McKay was shot from behind without any warning and with
no intimation that an attack was to be made upon him or the Moro.. What
the rule would be had McKay been facing McMann when the latter fired at
the back of the Moro, we do not, therefore, have to decide.

The court below held that the defendant was drunk at the time the
act was committed, but held also that drunkenness was habitual with him
and therefore his condition could not be taken into consideration for
the purpose of lessening the sentence. The defendant in this court
claims that the court erred in holding that drunkenness was habitual
with the defendant. The testimony upon that point furnished by one of
the witnesses for the defendant is as follows:

“Q.	Did you say that you saw the accused and McKay drinking together on the night before the day of the occurrence?
A.	Yes, sir.
“Q.	Is it not true that the said night was the first time you saw the accused drinking?
A.	No, sir. It is not true. I have seen him drink before.
“Q.	But you never saw him drunk before?
A.	Yes, sir.
“Q.	How many times had you seen the accused drunk before?
A.	That is a difficult question to answer; I have seen him drunk many times. The first time I knew the accused I saw him drunk twelve or more times.
“Q.	Then you mean to say that drunkenness was habitual with the accused?
A.	When I have seen him drinking, usually he retired drunk to the quarters.
“Q.	How many times have you seen the accused drinking during the time you have known him?
A.	I could not say; too many times to recollect.
“Q.	Are you sure of this?
A.	Yes, sir.”

We think this testimony justifies the court below in its holding in
view of what is said in some of the decisions cited by the defendant in
his brief. In the case of Commonwealth vs. Whitney (5 Gray, 85) the court said:

“The exact degree of intemperance which constitutes
a drunkard it may not be easy to define, but speaking in general terms,
and with the accuracy of which the matter is susceptible, he is a
drunkard whose habit is to get drunk, ‘whose ebriety has become
habitual.’ To convict a man of the offense of being a. common drunkard
it is, at the least, necessary to show that he is an habitual drunkard.
Indeed the terms ‘drunkard’ and ‘habitual drunkard’ mean the same
thing.”

In the case of Ludwick vs. Commonwealth (18 Penn. St., 172) the court said:

“A man may be an habitual drunkard, and yet be sober
for days and weeks together. The only rule is, Has he a fixed habit of
drunkenness? Was he habituated to intemperance whenever the opportunity
offered?”

The judgment of the court below is affirmed with the costs of this instance against the defendant.

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