THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. BONIFACIO ACOPIO, DEFENDANT AND APPELLANT.

The
defendant-appellant was charged in the justice of the peace court of
the municipality of Misamis, Province of Occidental Misamis, with the
crime of homicide, committed by wilfully and unlawfully assaulting and
attacking Vicente Miro with a rattan cane and a bolo on February 13,
1933 with the purpose to kill him and without any justifiable motive,
thereby inflicting upon him two wounds, one under the left knee and the
other on the left wrist, which caused the death of the said Vicente
Miro. The defendant pleaded guilty to said charge in the justice of the
peace court on February 14, 1933. The provincial fiscal filed an
information against the defendant for homicide in the Court of First
Instance of Occidental Misamis, but before the beginning of the trial
it was substituted by an amended information charging the defendant
with the crime of murder as follows:

“Que
en o hacia el 13 de febrero de 1933, en el Municipio de Misamis,
Provincia de Misamis Occidental, I. F., y dentro de la jurisdiccion de
este Juzgado, el referido acusado, voluntaria, ilegal y criminalmente,
con alevosia y premeditacion conocida agredio a Vicente Miro con un
bolo y un baston de que estaba armado causandole a este una herida en
la region poditea izquierda, otra en la region radiometacarpiano
izquierda, otra en la region del carpo derecho, otra en la region
occipital y una contusion en la frente, interesando vasos importantes
de las regiones y a consecuencia de ellas dicho Vicente Miro murio.”

The defendant was tried on a plea of not guilty to this amended
information, and not on the original information for homicide quoted in
the brief of the Solicitor-General.

After hearing the
evidence Judge F. Borromeo Veloso found the defendant guilty of the
crime of murder, and taking into consideration his lack of instruction
sentenced him to suffer seventeen years, four months, and one day of reclusion temporal, to indemnify the heirs of the deceased in the sum of P1,000, and to pay the costs.

Defendant’s attorney de oficio makes de following assignments of error:

“1.
The trial court erred in finding the deceased was killed treacherously
and, therefore, in convicting the accused of the crime of murder.

“2. The trial court erred in not finding the accused guilty only of
simple homicide in which the element of an incomplete self-defense was
present, together with the mitigating circumstances of (1) lack of
instruction, (2) lack of intention to commit so grave a wrong as the
one committed, (3) fear of grave danger to himself, (4) illness which
diminished the exercise by him of his will power without depriving him
of the consciousness of his act, and (5) voluntary surrender and
voluntary confession of guilty to the authorities.”

It appears from the evidence that on February 11, 1933 the defendant
entered the house of Crispina Miro and embraced her against her will.
She complained to her uncle, Vicente Miro, who rebuked the defendant.
Two days later the defendant went to the house of Vicente Miro and
inquired for him. Vicente Miro’s wife informed the defendant that her
husband was not at home. The defendant waited in the yard. When Vicente
Miro arrived he asked the defendant what he came for, whereupon the
defendant immediately struck Vicente Miro with the cane that he, the
defendant, was carrying, and then ran away. The deceased entered his
house, and after he had rested for half an hour he went out to get his
carabao. He was followed by his wife and his 12-year old son. As the
deceased was passing through a coconut grove, the accused stepped from
behind a coconut tree and struck him with a bolo, cutting the tendon on
the back of the left knee, which caused the deceased to drop down. The
accused then inflicted on him two other wounds, one on the left wrist
and the other above the medulla oblongata. Both the wound on the leg
and that on the wrist were mortal.

The defendant then turned on the wife and son of the deceased and pursued them with his bolo.

When the incident was investigated by Lieutenant Aguila of the
Constabulary, the defendant maintained that he had wounded the deceased
in self-defense with the latter’s own bolo, Exhibit C; but Tranquilino
Miro, the son of the deceased, said that defendant’s statement was
untrue, and that the defendant had killed the deceased with a much
larger bolo. Defendant’s house was then searched, and the bolo, Exhibit
A, was found therein. There were stains of coagulated blood on this
bolo which had been rubbed over with mud. The small bolo, Exhibit C,
which the deceased had been carrying when he was killed, was found to
be freshly stained with blood, but in the kitchen of defendant’s house
a chicken that had just been killed was found, and this fact doubtless
explains the fresh stains on the small bolo.

The testimony
of Vicente Miro’s wife and son, Valentina Muscato and Tranquilino
Muscato or Miro, is straightforward and convincing and leaves no doubt
as to the guilt of the accused. The trial judge found defendant’s
witness, Macario Saloma, unworthy of credit, and a reading of the
testimony of defendant’s father, Bernardino Acopio, convinces us that
he was trying to conceal the truth.

The fact that the
defendant stepped from behind a coconut tree, where he had been
concealing himself, and struck the deceased from behind without warning
constitutes alevosia and qualifies the crime as murder.

It appears that the defendant is unable to read and write, and the
trial judge properly considered defendant’s lack of instruction as a
mitigating circumstance. The claim of appellant’s attorney to other
mitigating circumstances is not sustained by the record. The defendant
did not voluntarily surrender himself to the authorities or their
agents, nor did he plead guilty to the information for murder on which
he was tried. He pleaded guilty in the justice of the peace court to
the charge of homicide. The contentions of defendant’s attorney that
the defendant did not intend to commit so grave a wrong as that
committed, that he acted out of fear of great danger to himself, and
that he was suffering from an illness which diminished the exercise by
him of his will power without depriving him of the consciousness of his
act are entirely without merit.

As to the aggravating circumstance of premeditation, we are of the opinion that it is not satisfactorily proved.

The decision appealed from is therefore affirmed, with the costs against the appellant.

Avanceña, C. J., Street, Abad Santos, and Butte, JJ., concur.