G.R. No. 19233. February 05, 1923

This appeal has been brought to procure a reversal or modification of a
judgment of the Court of First Instance of the Province of Occidental Negros,
finding the appellant, Fortunato Cañete, guilty of the offense of murder and
sentencing him to undergo the penalty of cadena perpetua, with the
accessories prescribed in article 54 of the Penal Code, to indemnify the heirs
of the person slain in the amount of P500, and to pay the costs.

It appears in evidence that on January 15, 1922, the deceased, Narciso de la
Cruz, was playing a game called hantak, with certain individuals on the
hacienda of Cubay, in the municipality of San Carlos, in the Province of
Occidental Negros. Among those present at the time was the accused, Fortunato
Cañete, who offered to wager 3 centavos against a like amount of Narciso de la
Cruz, but the latter refused the wager, saying that he and the accused were
friends. Fortunato took this as an affront and assaulted Narciso with a knife,
inflicting upon him a deep and lengthy gash on the thigh. In order to escape
from this attack Narciso fled, but he was pursued by the accused. After running
a short distance, Narciso fell face downwards on the ground, and before he could
arise to continue his flight Fortunato seized him by the neck with one hand and
with the other gave him a fatal thrust in the back with the knife. After
inflicting this wound, the accused desisted from the attack while Narciso arose
and again started to run. However, after going a distance of about 80 meters, he
fell to the earth and died almost immediately. These facts are indubitably
proved by the testimony of various persons who were present at the time the deed
was committed, and the force of their testimony is not arrested by the weak and
incredible story of the accused in which he pretends that the deceased, with
others, was the aggressor. The trial judge therefore was not in error in finding
the accused to be the responsible and guilty party.

The record, however, presents one question of law which merits attentive
reflection. This is the question whether, upon the facts above stated, the
commission of the offense was characterized by alevosia in the sense
necessary to constitute murder, or whether the crime was only that of simple
homicide.

Upon this point we are constrained to adopt the conclusion reached by the
Attorney-General and to hold that the qualifying circumstance of alevosia
was not present. The accused, therefore, should have been found guilty of simple
homicide; and, instead of being sentenced to cadena perpetua, he should
have been required to undergo imprisonment for fourteen years, eight months and
one day of reclusion temporal.

In this connection it should be noted that the original assault was begun by
a direct frontal attack and there was momentary struggle between the accused and
the deceased before the first knife wound was inflicted on the thigh of the
deceased; and it was at this point that the deceased turned to flee. Moreover,
pursuit by the accused followed immediately, after the deceased started to run,
and the assault was practically continuous from the beginning to the end. The
fall of the deceased in the course of his flight must be considered to have been
in the nature of a mere accident which did not materially change the conditions
of the struggle. In every fight it is to be presumed that each contending party
will take advantage of any purely accidental development that may give him an
advantage over his opponent in the course of the contest. It follows that
alevosia cannot be predicated of this homicide from the mere fact that
the accused overtook and slew the deceased while the latter was endeavoring to
rise from the ground.

In its main features the case now before us is identical with one noted by
Viada to the following effect: Between the accused and the person slain a fight
had taken place, provoked by the former, in which the contestants exchanged some
ugly words and the accused received a shove from the deceased which caused him
to strike against a wall. As the two attempted to engage again, some friends
seized the accused, who nevertheless escaped from the persons who were holding
him and ran after the deceased, who was then fleeing. In the course of his
flight the deceased tripped and fell to the ground; whereupon the accused at
once precipitated himself on his fallen antagonist and, holding him with one
hand, struck him with the other with a jackknife, producing a wound which caused
death. In the court of the Audiencia of Almeria the accused was declared to be
guilty of murder, but this judgment was reversed by the Supreme Court. (Viada, 2
Supp., 298, reporting decision of Dec. 26, 1891.) In the course of this decision
the court observed that although the trouble had begun in a barber shop and the
homicide occurred on the outside, nevertheless the contest should be viewed as a
single series of acts without any appreciable break in the continuity of action.
The homicide was accordingly declared not to be qualified by
alevosia.

As suggested in this and a similar decision of February 10, 1892, before
alevosia can be found to be present in a homicide it must clearly appear
that the method of assault adopted by the aggressor was deliberately chosen with
a special view to the accomplishment of the act without risk to the assailant
from any defense that the party assailed may make. (Viada, 2 Supp., 3d ed., p.
76, reporting decision of Feb. 10, 1892.) This cannot be said of such a
situation as that now before us, where the slayer acted instantaneously upon the
advantage which resulted from the accidental fall of the person slain.

It is undoubtedly true that alevosia may be exhibited in the final
consummation of a homicide where said factor has not been present in the
inception of the difficulty. For instance, it is the uniform doctrine of this
court that if a person is first seized and bound, with a view to rendering him
incapable of defense, and he is then slain either by the person who reduced him
to this helpless state or by another, the crime is murder (U. S. vs.
Elicanal, 35 Phil., 209, 218, and cases there cited). In a case of that kind it
is obvious that the binding of the victim of the aggression introduces a
material change in the conditions of the homicide; and in slaying a person so
circumstanced, the author of the crime obviously avails himself of a form or
means directly tending to insure the execution of the deed without risk to
himself from any defense on the part of the person slain.

In United States vs. Baluyot (40 Phil., 385), the majority of the
members of this court held that alevosia was present in a homicide
committed under the following circumstances: The accused, according to the
majority, suddenly and without provocation attacked the deceased by firing a
pistol upon him, when the deceased was unarmed. Upon this the deceased attempted
to get away and took refuge in a closet, closing the door after him and calling
aloud for help. The accused then tried to force open the door but did not
succeed, owing to the resistance of the deceased from within. However, judging
the position of the head of the deceased from the cries emitted, the accused
fired his pistol in the direction thus indicated. The bullet passed through the
panel of the door and, entering the head of the deceased, produced death.

A somewhat similar case is noted by Viada from the decisions of the supreme
court of Spain as follows: It appeared that an altercation had taken place
between the accused and certain persons in a house from which the accused was
thereupon ejected and the door shut after him. The accused from without then
fired his revolver through a crack in the door, causing the death of one of the
persons within. It was held that the offense was qualified by alevosia
and that the act was constitutive of murder, the court observing that the
accused availed himself of the door in order that he might accomplish the deed
through it without risk to himself and against which no means of defense
whatever were available. (1 Viada, 4th ed., p. 260.)

The present case differs from the cases above cited and their congeners in
the circumstance that here the assault, evidently of a homicidal character from
the beginning, but not treacherous in its inception, was continuous; and no
factor intervened to alter the fundamental conditions of the crime. The
circumstance that the deceased had fallen to the ground gave to the accused, it
is true, the opportunity, of which he promptly availed himself, to come up with
the deceased and to dispatch him at once. But the act of so doing cannot be
interpreted as evincing a design to employ a method indicative of
alevosia. The contrary is true in the case where the victim is bound
before being slain or is driven to take refuge behind the closed door of a
closet.

The doctrine applicable to the present case appears to have been correctly
stated in United States vs. Balagtas and Jaime (19 Phil., 164), where the
deceased was first knocked down and rendered senseless, after which—and while
still unconscious and powerless to make resistance—he was dragged to a pond,
into which he was thrown and left exposed, face downwards. The court held that
the various acts in the accomplishment of the homicide followed each other in
such rapid succession that they all constituted a single transaction, and that
the crime was not qualified by alevosia. Said the court: “One continuous
attack, such as the one which resulted in the death of the deceased Flores,
cannot be broken up into two or more parts and made to constitute separate,
distinct, and independent attacks so that treachery may be injected therein and
considered as a qualifying or aggravating circumstance.”

From what has been said it results that the judgment appealed from must be
modified; and instead of being adjudged guilty of the crime of murder with the
penalties incident thereto, the appellant must be sentenced for the crime of
simple homicide, with the corresponding accessories, and without aggravating or
mitigating circumstance. That is to say, he will be required to undergo
imprisonment for fourteen years, eight months and one day, reclusion
temporal, with the accessories prescribed in article 59 of the Penal Code.
As thus modified, the judgment will be affirmed, with costs. So
ordered.

Araullo, C.J., Malcolm, Avanceña, Villamor, and Romualdez,
JJ., concur.

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OSTRAND, J., with whom concurs JOHNS,
J.:

In my opinion the judgment of the court below should have been
affirmed in toto.